Salaries & Remuneration Commission v Gachuiri & 3 others (Civil Appeal E533 & E169 of 2024 (Consolidated)) [2026] KECA 692 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed judges' car allowance is constitutionally protected and the SRC cannot revoke it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court bench in particular and the serving Judges in general ought to recuse themselves from hearing the petition
- 2.Whether the petition should have been referred to mediation
- 3.Whether the duty-free vehicle allowance was a benefit that accrued to the Judges before the promulgation of the current Constitution
- 4.Whether, if a benefit, it transited to the current Constitution
- 5.Whether the revisions after the establishment of the SRC were lawful
- 6.Whether the learned Judges, in quashing the SRC's letter dated 12th July 2021 and compelling the Principal Secretary, National Treasury and Economic Planning to forthwith process and pay the taxable car allowance, usurped the exclusive constitutional and statutory mandate of the SRC
Key legal issues
#Whether Judges should have recused themselves because they would benefit from the decree
No. The petition was not a claim by Judges for money; any benefit was consequential. The objective test for apprehended bias was not met, and the doctrine of necessity and the duty to sit required the bench to hear the petition.
The Court distinguished pecuniary interest in the cause of action from a consequential accrual of benefit. Applying the South African Surf test and the Rai case, mere apprehension without factual proof of bias does not justify recusal. Value 2.5 of the Bangalore Principles and regulation 21(3) of the Code embody the doctrine of necessity: where no other tribunal can be constituted, Judges must sit. Rawal v JSC shows Judges decide matters affecting their welfare impartially.
Whether the petition should have been referred to mediation
No. Interpretation of the Constitution is exclusively judicial and inherently unsuited to mediation, which is consensual and binds only the parties.
Article 165(3)(d) vests interpretation of the Constitution in the High Court; judicial authority is not shared with other organs. Mediation is voluntary at every stage and its product binds only the parties, whereas constitutional interpretation requires a binding declaration of law. Referral would have abdicated the court's constitutional mandate, and presidential appointment of foreign mediators would violate separation of powers.
Whether the duty-free car grant was a benefit accruing to Judges pre-2010 and whether it transited
Yes; the benefit accrued under section 104 of the retired Constitution and transited to the 2010 Constitution as a taxable car allowance via the 7th July 2011 circular, pursuant to sections 6 and 7 of the Sixth Schedule.
The circular did not confer a new benefit but repackaged an existing one to conform with Article 210(3). Relying on the CCK case, the transition clauses prevent a juridical vacuum. The Head of Public Service lawfully transitioned the benefit; once the SRC was constituted in 2012, its duty was limited to reviewing what was already in place.
Whether the post-2012 enhancements of the benefit were lawful and whether the SRC could revoke them
The SRC knew of the 2015 and 2018 circulars, acquiesced, and the enhanced benefit crystallised under Article 160(4); revocation to Judges' disadvantage was unconstitutional.
The circulars were addressed to all accounting officers including the SRC's, and the SRC produced no evidence of ignorance, the fact being peculiarly within its knowledge under section 109 of the Evidence Act. Its prolonged silence sanctioned the reviews, and the benefit acquired constitutional protection. The attempted distinction between benefit and allowance was one without a difference.
Whether the High Court usurped the SRC's mandate by quashing the letter and compelling payment
No. Once accrual and non-diminution were established, the payment order followed naturally; the SRC has no discretion to withhold accrued salaries and benefits.
The obligation to pay arises once salaries are determined and benefits accrue; ringfencing under Article 160(4) protects remuneration from the vagaries of alleged fiscal sustainability. Vague governance-integrity arguments cannot defeat explicit constitutional imperatives, and the directive was consequential to the findings.
Legal principles established
#- Constitutional interpretation is not amenable to alternative dispute resolution; the High Court's power to interpret the Constitution cannot be ceded to mediators, arbitrators or any other entity
- Where no other tribunal can be constituted to hear a matter, Judges must sit under the doctrine of necessity; recusal claims based on mere apprehension of a consequential benefit fail the objective test
- A benefit attached to the office of Judge transited to the 2010 Constitution under sections 6 and 7 of the Sixth Schedule and, once ringfenced by Article 160(4), cannot be varied to the disadvantage of Judges by the SRC
- The law does not distinguish between Judges appointed before and after the 2010 Constitution for purposes of benefits; such differentiation would contravene Article 27
- The JSC's mandate over conditions of service of Judges is carved out of the SRC's remuneration mandate under Articles 172 and 230(4) respectively
- A party asserting a fact peculiarly within its own knowledge bears the burden of proving it under section 109 of the Evidence Act
Court orders
#- 1.Civil Appeal No. E169/E164 of 2024 against the recusal ruling dismissed; the High Court ruling of 23rd February 2024 upheld
- 2.Civil Appeal No. E533 of 2024 against the final judgment dismissed in its entirety
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. E304 of 2023
- Jurisdiction invoked
- First appeal against High Court decisions; constitutional petition under Articles 22, 258 and 165(3) of the Constitution
- Consolidated with
- Civil Appeal No. E533 of 2024
Relief refused
#Recusal of the High Court bench (and all serving Judges) from hearing the petition
The financial benefit was consequential, not the subject of the claim, and the doctrine of necessity and the duty to sit applied
Referral of the dispute to mediation or arbitration
Constitutional interpretation is not amenable to ADR and referral would have stripped the courts of jurisdiction
Setting aside the quashing of the SRC letter and the order compelling payment of the taxable car allowance
Payment of accrued salaries and benefits is a constitutional obligation and the order flowed naturally from the findings
Costs
Being a matter touching on the public interest, we make no order as to the costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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. Being a matter touching on the public interest, we make no order as to the costs.
In our view the application was clearly unmerited on both limbs of recusal and referral to mediation. It was properly dismissed and we uphold the decision arrived at by the learned Judges of the High Court on 23rd February 2024.
The power to interpret the Constitution is one such power that is not amenable to alternative dispute resolution mechanism.
we hold that the duty-free car grant was a benefit that accrued to the Judges before the promulgation of the current Constitution and it transited to the current Constitution in the form of taxable car allowance. The attempted distinction between benefit and allowance by the SRC is one without a difierence in the circumstances.
It maintained a studious silence and allowed the benefit to accrue and crystallize under Article 160(4) of the Constitution, thus has been accessed by Judges as reviewed.
There is not distinction based on the promulgation of the Constitution so as to treat some Judges as pre-2010 Constitution and post 2010 Constitution. Such distinction would clearly contravene Article 27 of the Constitution.
the drafters of the Constitution intended to carve out the powers to review other benefits other than remuneration from the powers of the SRC and instead give them to the JSC as regards Judges and judicial oficers.
In our view the financial interest, in our view, must be one that is directly connected to the cause of action before the Judge.
Issues in the judgment
#Inconsistent numbering of the recusal appeal: the judgment opens by identifying it as Civil Appeal No. E164 of 2024 but later refers to it as Civil Appeal No. E169 of 2024
Erroneous cross-reference to Article 163(3)(d)(i) and (ii) where the context concerns the High Court's interpretive jurisdiction under Article 165(3)(d)
The judgment text at paragraph 78 misstates the financial-interest test, reading 'In our view the financial interest, in our view, must be one that is directly connected'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salaries & Remuneration Commission v Gachuiri & 3 others (Civil Appeal E533 & E169 of 2024 (Consolidated)) [2026] KECA 692 (KLR)", Case Analysis (2026). Civil Appeal No. E164 of 2024 and Civil Appeal No. E533 of 2024 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/692/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.