Why judges declined to recuse themselves in car allowance case

The High Court has dismissed an application by the Salaries and Remuneration Commission (SRC) asking the court to refer to arbitration a petition seeking the reinstatement of the car allowance for judges.

A three-judge bench dismissed the SRC's application, saying the crux of the petition was the interpretation of the Constitution and whether the decision to stop the allowance violated Article 160(4) of the Constitution.

The SRC wanted Justices Chacha Mwita, Patricia Nyaundi and Lawrence Mugambi or any other judge to recuse themselves from hearing the case because of perceived bias.

Instead, the commission wanted the matter to be handled through mediation by a panel of three retired Commonwealth judges to be appointed by the president or three arbitrators to be appointed by the Chartered Institute of Arbitrators.

But the judges rejected this argument, saying that although the petition appeared to be about judges, it was really about interpreting the constitution against the decision of the SRC. The judges said further relief would depend on the outcome of the core issue.

"In this regard, any suggestion that this bench, and indeed any other judge or judges in this country, cannot and should not hear this petition is not only strange, but would do an injustice," the judges said.

The bench said the High Court, as the guardian of the Constitution, has the ultimate mandate to interpret the Constitution and resolve the dispute that the parties have brought before it.

In the petition, Mr Peter Mwangi Gachuri challenged the constitutionality of a decision taken by the SRC on 12 July 2021 that stopped the taxable car allowance enjoyed by judges.

The petitioner claimed that the decision violated Article 160(4) of the Constitution and threatened the independence of the judiciary.

The SRC wanted the judges to disqualify themselves, arguing that the court, as a financial beneficiary of all the judges, had a direct financial interest in the outcome of the application and therefore should not decide it.

The Commission argued that it was not appropriate for judges to decide a matter where they were the ultimate beneficiaries of the final outcome.

According to the SRC, this was a clear case of conflict of interest and the judges were likely to make a subjective and biased judgement that would further their financial interests.

The Judicial Service Commission opposed the case, arguing that if the SRC's position that all judges should recuse themselves were accepted, it would mean that any of the SRC's decisions could not be challenged in court.

The judges' employer said this would be contrary to the values and principles of the Constitution that all persons, including commissions, are subject to the Constitution. The JSC also said that the decisions of the SRC were therefore not immune from judicial review.

"We are of the view that we have the ability to free our minds from any irrelevant personal beliefs and do justice as required of us by the Constitution for the benefit of all parties before us," the judges said.