Appellate court upholds judges' taxable car allowance, dismisses SRC challenge

The High Court, in a May 24, 2024 judgment, declared the allowance a protected benefit under Article 160(4) of the Constitution.

The Court of Appeal has dismissed the Salaries and Remuneration Commission's challenge and affirmed that judges are entitled to a taxable car allowance for the purchase of private vehicles.

The verdict in the consolidated civil appeals was delivered on March 25, 2026, by a five-judge bench of justices George Odunga, P Kiage, W Karanja, Weldon Korir and K M'inoti.

The matter traces back to a High Court petition filed by Peter Mwangi Gachuiri, backed by the Kenya Judges and Magistrates Association (KJWA) and Judicial Service Commission (JSC).

It stemmed from SRC's July 12, 2021, letter revoking a long-standing taxable car allowance, which evolved from a pre-2010 constitution duty-free car grant for judges.

The High Court, in a May 24, 2024 judgment, declared the allowance a protected benefit under Article 160(4) of the Constitution, quashing SRC's revocation and ordering the National Treasury's Principal Secretary to process payment.

SRC fired back with appeals heard on July 29, 2025. Before diving into merits, SRC sought recusal of the High Court bench via a December 14, 2023, application, claiming inherent conflict since judges stood to benefit financially.

Supported by the Attorney General (AG), SRC argued all judges—from High Court to Supreme—had a "direct pecuniary interest," urging mediation by three retired Commonwealth judges appointed by the President or arbitrators from the Chartered Institute of Arbitrators, invoking Article 159's alternative dispute resolution push.

"Judges in the country have a direct pecuniary interest in the outcome of the petition and should not, therefore, sit on the petition," SRC contended.

Gachuiri countered that it was public interest litigation defending constitutional provisions like Articles 258(1) and 160(4), with High Court jurisdiction under Article 165(3).

KJWA and JSC echoed this, stressing the doctrine of necessity: recusal would paralyse justice as "no other Judge would hear the petition."

The High Court dismissed the bid on February 23, 2024, ruling constitutional interpretation was its core mandate.

"The court will not recuse itself where it will create an unconstitutional moment by refusing to hear a litigant's case because the opposite party apprehends bias."

On appeal, SRC and AG doubled down, citing Bangalore Principles and jurisprudence from cases like Jasbir Singh Rai & 3 others v Tarcholan Singh Rai & 4 others.

They claimed a "reasonable apprehension" of bias, especially as two High Court judges who were post-2021 appointees stood to gain.

"The Judges appointed after June 2021 are the ones who stood to benefit from the judgment," Kiramana, an officer acting for AG, noted.

The appellate court rejected this outright and upheld the denial of recusal. It invoked the objective test from President of the Republic of South Africa & others v South African Rugby Football Union: a fair-minded observer wouldn't doubt impartiality given judges' oath and duty to sit.

"Judges are not autocrats but are obligated to be faithful to the law and to apply it impartially," the bench quoted from Rawal v Judicial Service Commission.

Turning to the matter at hand, the court affirmed four issues: the pre-2010 duty-free grant was a benefit; it transitioned via Head of Public Service circulars (July 7, 2011; June 2, 2015; June 4, 2018) under Sixth Schedule sections 6 and 7, becoming taxable to align with Article 210(3).

Judges said enhancements of the car grants to Sh10 million were lawful, and that SRC's "studious silence" sanctioned them despite being aware as recipients of the circulars.

The court said revocation of the circulars breached Article 160(4): "Where a benefit has already accrued and is thus ringfenced by Article 160(4), that benefit is beyond the reach of the SRC."

SRC argued that the car grants were unsustainable, double-dipping (obtain an income from two different sources) amid entitlement to official vehicles, and usurpation of its mandate.

The court said drafters of the constitution took into account the important role played by the Judiciary and Judges and the potential risk that may be posed to the rule of law if the remuneration and benefits were subjected to the vagaries of alleged fiscal sustainability and governance integrity.

"The posture taken by the SRC that the decision poses substantial risks to Kenya’s fiscal sustainability and governance integrity rings hollow. The importation of such vague and ambiguous terms to defeat explicit constitutional imperatives cannot be countenanced," the court said.

It added that it is a constitutional obligation on the part of the government to pay salaries and allowances to Judges when due, and observed that SRC has no discretion when it comes to payment of accrued salaries and benefits.

"While it has discretion to review upwards the said salaries and benefits, that discretion does not encompass deciding whether or not the same ought to be paid," the court said.

The commission claimed being unaware of the circulars until 2021, but the court dismissed this, saying circulars targeted accounting officers, including SRC's.

"SRC is not being candid as to when it became aware," the court held, ruling that the High Court orders stood "and we see no justification for faulting that order".

"Having considered the issues raised before us in this appeal, the decision we come to is that the appeal is unmerited. It is dismissed in its entirety."