[2023] KEHC 24994 (KLR)

Gachuiri v Attorney General & another; Kenya Judges Welfare Association & another (Interested Parties) (Constitutional Petition E304 of 2023) [2023] KEHC 24994 (KLR) (Constitutional and Human Rights) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24994 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E304 of 2023

LN Mugambi, J

November 9, 2023

Between

Peter Mwangi Gachuiri

Petitioner

and

The Honourable Attorney General

1st Respondent

Salaries and Remuneration Commission

2nd Respondent

and

Kenya Judges Welfare Association

Interested Party

The Judicial Service Commission

Interested Party

Ruling

1. Pursuant to the 2nd respondent/applicant Notice of Motion application dated 16th October, 2023 brought under Article 165(4) of the Constitution, Rules 3 (2), (3), (4) & (5) of the Constitution of Kenya (Practice & Procedure Rules), 2013; and which application is supported by the affidavit of Anne K Gitau of even date; the Applicant came to this Court under certificate of urgency seeking orders that: -1. That this Application be certified urgent and heard on a priority basis in the first instance.2. That the Honourable court be pleased to certify that this Petition raises substantial questions of law that require determination by an uneven number of Judges -pursuant to Article 165 (4) of the Constitution.3. That costs for this Application be provided for.

2. In the supporting affidavit to the notice of motion application, the deponent states, that the petition has been filed in public interest and on behalf of current and future judges on account that the constitution has been violated.

3. The 2nd respondent/applicant in urging this court to find that the petition raises substantial questions of law identifies what he considers to be the weighty legal issues that the Court, through this Petition will be required to resolve. The issues are:a.Whether any officer or arm of the government can grant the taxable car allowance to Judges besides the 2 Respondent who has the mandate under article 230 (4) (8) of the Constitution and particularly the power of the 2 Respondent (salaries and remuneration commission) in setting and reviewing remuneration and benefits of Judges in Kenya.b.Whether Judges should continue benefiting from the illegal taxable car allowance granted to Judges of the High Court in 2011 and revised in 2015 and 2018 respectively by the Head of Public Service without the involvement of the 2 Respondent.c.What is the implication of article 210 of the Constitution vis a vis the duty-free motor vehicles Judges were entitled to prior to the 2010 promulgation of the Constitution?d.Whether the taxable car allowance is fiscally sustainable and affordable considering the national wage bill in Kenya.e.Whether the scrapping of the taxable car allowance affects the independence of the Judiciary within the meaning of Article 160 (4) of the Constitution.

4. The applicant asserts that these are matters of general public importance as they relate to proper utilization of public resources and sustainability of the National Wage Bill which are matters that affect Kenyans.

5. That it also extends to the issue of separation of powers particularly as between the Executive and an Independent Commission, the 2nd Respondent.

Analysis and Determination 6. When this matter came on the 1st instance on 17th October, 2023; it was certified as urgent and directions as to service to all the parties given.

7. Parties appeared in Court on 24th October, 2023. The respondents and interested party present on that day did not object to the application. However, the court directed that it would have to ascertain if the issues raised by this Petition met the threshold required for certification of the matter to the Chief Justice for the empanelment of uneven number of Judges to hear the petition.

8. The only issue, therefore, for determination is whether this petition satisfies the legal threshold necessary for certification of the matter to the Chief Justice to constitute a uneven number of Judges to determine it.

9. Article 165 (4) under which this application is brought provides for certification, applies if a matter raises a substantial question of law.Article 165(4) provides:‘any matter certified by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice’.

10. The court must, therefore, satisfy itself per certification is merited and not merely act on the whims or wishes of the parties. It means that even where parties consent, the court is not discharged from that responsibility of evaluating and satisfying itself independent of the parties stated position.

11. Justice Odunga in Wycliffe Oparanya and 2 Others Vs DPP & Another (2016) eKLR held thus: -“…. for the matter to be referred to the Chief Justice for the said purpose the High Court must certify that the matter raises a substantial question of law in the following instances….… Since the determination of such issue is a judicial one, the Court is obliged either on its own motion or on an application of the parties to the cause to identify the issues which in its view raise substantial questions of law. Therefore, the mere fact that parties are of the view that the matter falls under Article 165(4) does not necessarily bind the Court in issuing the said certification…”

12. A reading of Article 165(4) reveals two important factors that must guide the court in determining this particular question; namely: -i.That the matter under consideration must be one that falls under Clause 3(b) or (d) in Article 165, and;ii.The court must satisfy itself that it raises a substantial question of law.

13. On the first limb, whether or not the matter falls under Article 165(3) (b) or (d) of the Constitution, looking at the petition and responses/answer to the petition filed by the respondents; it is crystal clear that the heart of this Petition is the constitutionality of taxable car allowances for the Judges. The Petitioner alleges that the actions of the respondents amount to interference with protected accrued benefits payable to Judges hence unconstitutional whereas the respondents assert that the said taxable car allowances were granted without following the laid down constitutionally sanctioned route, which was a violation of constitution.

14. This matter, therefore, falls under Article 165(3) (d) (ii) of the Constitution. The focus of the said sub-article being ‘whether anything said to done under the authority of the Constitution or any law’ is inconsistent with or in contravention of the Constitution.

15. The second limb that needs to be settled is ‘whether the matter raises a substantial question of law.’ This is not explained by the constitution.

16. Then Indian Case of Chunilal Vs Mehta Vs Century Spinning & Manufacturing Co. Air (1962) Sc 1314 offers a useful guide. In the case, their Lordships elaborated on the phrase ‘substantial question of law ‘as follows.“…A substantial question law is one which is of general public importance or which directly and substantially affects the rights of the parties and which have not been finally settled by the Supreme court, privy council or the Federal Court or which is not free from difficult or which calls for discussion of alternative views. If the question is settled by the highest court or general principles to be applied in determining the questions are well settled and that there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial…”

17. The question therefore becomes, does this petition raise a substantial question of the law? In deciding this question, the Court must keenly examine circumstances of this case.

18. I have looked at the issues raised by the 2nd respondent as summarized in paragraph 5 of the supporting affidavit to the application and have also read the Petition and the responses to the Petition fully.

19. The issues raised relate to the compensation for Judges. This is one of the protected constitutional features of judicial independence. There will thus be a need to determine if the current stalemate over this matter is a potential threat to judicial independence in this country.

20. The historical perspective on payment of these allowances or their equivalent would have to be explored, just as is the question of who had/has the constitutional mandate to make a decision over this matter. Clarity over these matters will need to be defined.

21. In my assessment, these are thus not mere questions of law, but substantial issues which have not been expressly litigated in this country yet. They need to be conclusively settled to ensure consistency and predictability in a matter of great constitutional significance as presented through this Petition.

22. The concept of the independence of the Judiciary is designed to benefit the public and the remuneration of judges, conditions of service, their age of retirement is part of the package of the judicial independence that is secured by the Constitution. A threat to constitutional guarantees on judicial independence is a serious affront to any constitutional democracy as independence of judges is closely intertwined to the rule of law which is the hall mark of any well-meaning democracy.

23. The issues raised herein are substantial to necessitate a reference to the Chief Justice to appoint uneven number of Judges to hear and determine. I thus certify that this matter raises substantial question of law and hereby refer the same to the Chief Justice for empanelment of a Bench.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF NOVEMBER, 2023. L N MUGAMBIJUDGE