SRC loses bid to cut judges' medical cover, travel allowances

The High Court has declared unconstitutional the Salaries and Remuneration Commission's (SRC) decision to slash judges’ medical and travel benefits, warning that the move undermined judicial independence.

Justice Roselyne Aburili ruled that the Salaries and Remuneration Commission (SRC) overstepped its constitutional mandate by making decisions on the welfare of judges,  judicial officers and Judiciary staff beyond its powers to determine and review their remuneration.

“By making decisions on the welfare of judges, judicial officers and judicial staff beyond its limited constitutional mandate of setting and reviewing their remuneration, the SRC encroached on the mandate and functions of the JSC in violation of the independence of the judiciary contrary to Article 160 as read with Article 172 of the Constitution,” the judge ruled.

In her judgment, Justice Aburili further declared that SRC violated Article 160(4) of the Constitution by varying judges’ medical cover and daily subsistence allowance (DSA) to their disadvantage.

Consequently, the judge issued an order quashing the commission’s October 13, 2023 letter to the extent that it affected benefits payable to judges, judicial officers and Judiciary staff other than remuneration.

The petition was filed by Marion Joy Onchagwa who challenged SRC’s decision, arguing that the commission had unlawfully interfered with benefits negotiated by the Judiciary.

Under the changes communicated in the letter, judges’ optical and dental medical covers were reduced from Sh200,000 to Sh75,000 each, while their daily subsistence allowance for official travel was reduced from Sh25,000 to Sh18,000.

Onchagwa argued that the reductions violated Article 160(4) of the Constitution, which protects judges against any variation of their remuneration and benefits to their disadvantage.

She maintained that the Judiciary had independently negotiated the medical insurance package through a competitive procurement process, with the premiums being paid from its budget approved by Parliament and without additional cost to the public.

 The petitioner, supported by the Kenya Judges Welfare Association, further argued that SRC had no authority to interfere with benefits negotiated by the Judicial Service Commission (JSC), warning that such interference undermined the independence of the Judiciary.

The association maintained that the JSC was constitutionally mandated to determine judges’ working conditions and that SRC’s mandate was limited to remuneration.

However, SRC opposed the petition arguing that the High Court lacked jurisdiction to hear the dispute because it concerned employment benefits and should instead have been handled by the Employment and Labour Relations Court.

On the substantive issues, the commission maintained that Article 230(4) of the Constitution empowered it to set and regularly review the remuneration and benefits of all State officers, including judges.

It argued that the medical cover had always been set at Sh75,000 for optical and dental benefits and that the Judiciary had independently negotiated the Sh200,000 cover without its involvement.

The commission also denied reducing the DSA from Sh25,000, insisting that the rate had never been approved by it and that it had standardised the allowance at Sh18,000 across public institutions to address disparities.

SRC further argued that it had consulted stakeholders, including the JSC, during the remuneration review process and that the Kenya Judges Welfare Association had been invited to participate but failed to take part.

It also maintained that judges without official vehicles were entitled to a monthly transport allowance of Sh30,000 and that the Sh8 million car loan facility, repayable over five years at three per cent interest, was available to State officers and was not compulsory.

In determining the dispute, Justice Aburili held that the Constitution had deliberately separated the responsibilities of the two commissions, giving SRC authority over remuneration while reserving other conditions of service for the JSC.

The judge observed that Article 172(1)(b)(i) gives the JSC responsibility for reviewing and making recommendations on the conditions of service of judges and judicial officers, other than their remuneration.

She further noted that Article 160 protects both the institutional independence of the Judiciary and the financial independence of individual judges.

“Setting and reviewing of DSA was not part of respondent’s mandate because DSA is not part of remuneration,” the judge stated.

The court also ruled that the Special Judicial Duty Allowance fell outside SRC’s mandate because it was not paid to all judges and judicial staff and was determined by the JSC.

However, Justice Aburili declined to grant the petitioner’s complaints concerning transport allowances and car loans or judges, finding that she had not provided sufficient evidence to demonstrate that the Sh30,000 monthly transport allowance was inadequate or that the car loan facility violated constitutional rights.

The judge consequently declared that SRC had encroached on the JSC’s constitutional mandate and interfered with the independence of the Judiciary.

Following the decision, SRC has announced that it would challenge the judgment at the Court of Appeal, disputing the court’s interpretation of its constitutional mandate.

“The SRC will appeal a High Court judgment which held that SRC’s mandate over judges and judicial officers is limited to remuneration, and further that Daily Subsistence Allowance (DSA), Medical Cover and Special Judicial Duty Allowance fall under the JSC,” the commission said.

SRC maintained that allowances and benefits attached to a State office fall within its mandate, regardless of whether they are also described as conditions of service.

“Allowances and benefits attached to a state officer fall within SRC’s mandate, whether or not they are also described as conditions of service. SRC notes that a benefit that facilitates official duty is still part of the total compensation of a state officer and is still paid from public funds,” the commission stated.

The commission further warned that excluding the Judiciary from standardised allowances could create divergent compensation structures across the public service, trigger demands for similar benefits by other institutions and increase pressure on public finances.

SRC said it would pursue the appeal to defend its constitutional role in ensuring that remuneration and benefits for State and public officers are determined fairly, equitably and sustainably.