The High Court has mandated the Treasury to promptly disburse the approved hardship allowance to Judges and judicial officers stationed in challenging areas, effective from October 1, 2019.
This allowance is set at 40 percent of their basic salary.
Court documents reveal that the Treasury previously provided this allowance to judicial personnel assigned to regions like Turkana and Mandera, but it was suddenly discontinued.
In his ruling, Justice Chacha Mwita declared that the directive from the Salaries and Remuneration Commission (SRC) instructing the Treasury Cabinet Secretary to halt the allowance payments to Judges in designated hardship zones was unconstitutional, violating Article 160(4) of the Constitution.
Justice Mwita emphasized that judges have the right to have their remuneration and benefits protected from unfavorable changes.
He also ordered the Treasury Cabinet Secretary to ensure that payments are made to judges and judicial staff who were relocated from hardship areas without receiving their hardship allowance from October 2019 until their respective transfer dates.
The case was initiated in 2022 by Jonathan Munene Mwangi against the Treasury CS, SRC, and other involved parties after the allowance was terminated in 2019, despite its existence since January 2012.
Introduced in 2011 and included in the judiciary transfer policy, the allowance was implemented in 2012 but was withdrawn in 2019 without prior notice or justification to those affected.
During the proceedings, the SRC argued that the decision to cease the allowance was based on a study conducted in September 2014.
The Judge pointed out that the commission failed to clarify whether the judiciary was consulted during this study or if those receiving the allowance were informed about the intention to withdraw it.
Mwita ruled that the SRC could not eliminate the allowance without prior consultation with the judiciary, given its established presence since 2012.
The judge stated, “At that time, the allowance formed a component of the benefits provided to judges, judicial officers, and staff in those regions. This established a reasonable expectation that it would not be removed without their awareness and justification.”
The Attorney General, involved in the case, questioned the jurisdiction, arguing that the courts lacked the authority to address the issue.
However, Mwita asserted his jurisdiction, clarifying that there was no employer-employee relationship between the judges and the Attorney General, as they are not state employees but rather employees of the Judiciary.
