The Salaries and Remuneration Commission (SRC) has sought the have Chief Justice Martha Koome and Supreme Court Justice Mohammed Warsame recuse themselves from a case challenging a Ksh10 million taxable car allowance awarded to judges every four years.
The application was raised on Wednesday, October 14, 2026, as the Supreme Court began hearing SRC’s appeal against High Court and Court of Appeal decisions upholding the benefit for judges nationwide.
SRC argued that the two judges’ prior involvement in discussions related to the dispute, along with remarks allegedly made by Koome about the commission, raised concerns about their impartiality.
However, Koome rejected the allegations, insisting she had no conflict of interest and was ready to hear the case under her constitutional mandate.
Concerns Over Judges’ Impartiality
SRC lawyer Peter Wanyama told the seven-judge Supreme Court bench that the commission was apprehensive about having Koome and Warsame participate in determining the dispute.
Wanyama cited the judges’ previous involvement in Judicial Service Commission (JSC) discussions touching on the contested car allowance. He also referred to remarks Koome allegedly made during a judicial colloquium in Mombasa on September 7, 2023.
According to the lawyer, the Chief Justice described SRC as “the enemy of the judiciary,” raising concerns about whether the commission would hear the case impartially.
“My client has instructed me to raise these concerns. They are appreciably apprehensive that you will not be impartial in adjudicating a dispute concerning them,” Wanyama told the court.
He further criticized the decisions made by the lower courts in the dispute, arguing that the Supreme Court needed to address what he described as an abuse of judicial power.
“I represent the Salaries and Remuneration Commission, which has been battered severely by the High Court and the Court of Appeal in circumstances which amount to massive abuse of judicial power,” Wanyama said.
SRC’s application sought to have the two judges step aside before the court proceeded with the appeal. The commission’s concerns centered on whether their continued participation could affect the fairness of the proceedings.
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SRC Argues Supreme Court Can Proceed Without the Two Judges
Wanyama also challenged the possible reliance on the doctrine of necessity to allow Koome and Warsame to remain on the bench.
The doctrine of necessity can allow a judge to hear a matter despite circumstances that would ordinarily raise recusal concerns, where stepping aside would prevent the court from functioning properly.
However, SRC argued that the principle did not apply because the Supreme Court could still sit with other judges and meet its quorum requirements.
“The Supreme Court is a quorum for five judges,” Wanyama told the bench, urging Koome and Warsame to recuse themselves.
He argued that the availability of other judges meant the court could continue hearing the appeal without the two judges whose impartiality the commission had questioned.
The application came at the start of proceedings concerning the Sh10 million taxable car allowance, which SRC is challenging after the High Court and Court of Appeal upheld the benefit.
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The Supreme Court appeal places the contested allowance before the country’s highest court, with SRC seeking to overturn the lower courts’ decisions.
Koome Rejects Allegations of Bias
Koome dismissed the allegations of bias, maintaining that she had no conflict of interest in the case and would carry out her constitutional responsibilities.
“We have no conflict of interest in this matter. As the Chief Justice, I have absolutely no conflict,” she said.
The Chief Justice also defended her impartiality and that of Warsame, saying their responsibility was to interpret and uphold the Constitution rather than favor any party in the dispute.
“I have taken an oath to administer the law, to protect and promote the Constitution. I have no bias whatsoever, and so is my colleague, Your Honorable Mr Justice Warsame,” Koome stated.
She further rejected the suggestion that the two judges were prejudiced against SRC, noting that the commission was carrying out its mandate.
“We have no bias whatsoever against the Salaries and Remuneration Commission. They are doing their work,” she said.
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