The rift between the Salaries and Remuneration Commission and Judges of Kenya over the Sh10 million car grant continues to deepen with the state agency now seeking the disqualification of the three Judges appointed to hear the matter.
The SRC on Friday told a three-judge bench that they ought to recuse themselves from the case and refer the matter to mediation.
Through its advocate Peter Wanyama, SRC said the judges will directly benefit from the orders sought if at all they are issued, therefore raising the question of conflict of interest.
The petition before the court was filed by Peter Gachuiri Mwangi who seeks to reinstate the taxable car allowances for High Court, Court of Appeal and Supreme Court judges, which they have enjoyed since 2011 but which the SRC scrapped in 2021.
But before the matter could be heard, the SRC filed an application seeking to have the same matter referred to the CJ to constitute an uneven number of Judges to hear it owing to the weighty and complex issues the petition raises.
Koome subsequently appointed Justices Chahca Mwita, Lawrence Mugambi and Patricia Nyaundi to hear the matter.
But SRC is now asking the bench to bow out of the matter saying it has no capacity to apply their minds objectively in the case.
“How can you determine a matter where you have a direct interest? What precedent will it set in the entire public service?” asked the advocate.
He requested the bench to disqualify themselves and thereafter fashion an order that would subject the case to mediation.
“Recuse yourself, if you can't recuse yourself refer this issue for mediation. Because those are issues of policy which this court will be incompetent to determine,” Wanyama said.
“You are being asked to determine a matter where you have a direct conflict of interest. We are fearful that the Judges are likely to be biased if they proceed to hear the case because of the existing direct conflict of interest."
The Attorney General was in support of the application made by the SRC.
“This petition seeks to confer an economic benefit to a category of Judges appointed after 2021. It’s not in dispute we have some judges appointed on that date in this bench. If this order is given they will be conferring upon themselves the benefit,” Emmanuel Bita said representing the AG.
From the bench appointed by Koome, both Nyaundi and Mugambi became High Court judges in 2022. Mwita has been there since 2014.
Bita explained that the judges hearing the matter ought not to have any interest in the case.
But Elisha Ongoya who is representing Peter the petitioner in the case opposed the application saying it contains many levels of paradox.
He asked the court to dismiss the application by the SRC as they are asking the court to assume the powers of the Chief Justice and constitute another forum to hear the matter.
“Even if parties go for mediation and come to an agreement, they will have to come back to court for the same to be adopted. This thought lacks logical clarity,” he said.
The JSC on the other hand led by Issa Mansour also opposed the application by SRC seeking recusal of the judges constituted by the CJ.
He said the reason given that the judges are inherently conflicted is not established in any facts.
Court will rule on the same on February 23.