Constitutional Clash Over Judicial Benefits

NAIROBI – Kenya’s Salaries and Remuneration Commission (SRC) has formally opposed a parliamentary bill proposing enhanced retirement benefits for judges, warning it would cost taxpayers an estimated Sh15 billion annually. In a memorandum to the National Assembly’s Justice and Legal Affairs Committee on Tuesday, November 4, 2025, the SRC argued that the Judges Retirement Benefits Bill, 2025, is fiscally unsustainable and unconstitutionally attempts to strip the commission of its exclusive mandate to set remuneration for state officers.

The proposed legislation, which is currently undergoing stakeholder review, seeks to grant the Judicial Service Commission (JSC)—the employer of judges—the authority to determine retirement packages. This move, according to SRC's acting Chief Executive, Margaret Njoka, constitutes a "direct usurpation" of the SRC's constitutional powers as outlined in Article 230(4)(a). The commission asserts that it has neither initiated nor approved the benefits detailed in the bill.

Fiscal Impact and the National Wage Bill

The SRC's primary objection centres on the financial implications of the bill. The proposed post-retirement transport and medical benefits alone are projected to cost Sh1.74 billion in the first year of implementation. The overall Sh15 billion annual cost comes at a time when the government is facing significant financial challenges, including a large public debt and depressed revenues, which recently led the National Treasury to reduce secondary school capitation funds.

This potential increase in expenditure runs counter to the government's ongoing efforts to manage its ballooning public wage bill. Treasury Cabinet Secretary John Mbadi recently stated that the government spends Sh80 billion per month on public servant salaries, totaling Sh960 billion annually, a figure he described as unsustainable. The SRC has highlighted its success in reducing the wage bill from 51% to 43% of national revenue between 2019 and 2024, saving the exchequer approximately Sh70 billion annually. However, this is still above the 35% limit stipulated by the Public Finance Management Act.

Key Contentions in the Bill

Several specific clauses within the bill have drawn criticism from the SRC. A key issue is the proposed definition of "pensionable emoluments" to include both basic salary and house allowance. This contradicts a directive issued by the SRC to the JSC on October 13, 2023, which stated that pensionable pay should be based solely on basic salary. The SRC has recommended amending this clause to ensure equity and consistency across the public sector.

Furthermore, the bill proposes a non-contributory pension scheme, meaning the benefits would be fully funded by the government. The SRC has instead advocated for a defined contribution scheme, in line with existing government policy, where judges would also contribute to their retirement fund. The commission warns that offering such generous, non-contributory benefits to one category of state officers could trigger a "legitimate clamour" for similar perks from others, such as governors, cabinet secretaries, and heads of independent offices, placing further strain on public finances.

Broader Context of Public Sector Pay Disputes

This standoff is the latest in a series of disputes between the SRC and various arms of the public sector over remuneration. The SRC has been leading a government-wide initiative to link civil servant salaries with productivity to manage the wage bill more effectively. The commission recently launched a Sh9.67 billion five-year strategic plan to rein in public sector wages.

The judiciary and the SRC have previously clashed over benefits. In May 2024, the High Court reinstated a Sh10 million taxable car allowance for judges that the SRC had scrapped in 2021. The SRC argued the allowance was fiscally unsustainable, costing taxpayers Sh2.5 billion every four years, and raised concerns about a conflict of interest as judges ruled on a matter directly benefiting them. The commission has vowed to appeal that decision. The current dispute over the retirement bill underscores the ongoing tension between ensuring the independence and welfare of the judiciary and the SRC's constitutional mandate to ensure fairness, affordability, and sustainability in public sector compensation.