Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 9 of 2019 (UR. 8/2019)· [2019] KECA 721 (KLR)

Salaries Remuneration Commission v Parliamentary Service Commission & 4 others [2019] KECA 721 (KLR)

Court of Appeal
24 May 2019
William OukoW. OukoASAsike-MakhandiaJOJ. Otieno-Odek
2,403 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to block a High Court decision quashing MPs' salary changes, because the SRC couldn't prove the appeal would be worthless without a stay.

What this practically means

#

Executive summary

#
This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Ouko P, Makhandia and Otieno-Odek JJA) on the Salaries Remuneration Commission's notice of motion dated 8th January 2019 seeking stay of execution of the High Court judgment of Odunga J delivered on 10th December 2018 in Nairobi Judicial Review Misc. Appl. No. 686 of 2017, which quashed by certiorari Gazette Notice No. 6517 of 7th July 2017 revising the remuneration of state officers serving in Parliament. Applying the settled twin principles under Rule 5(2)(b) of the Court of Appeal Rules, the court accepted, on the first limb, that the intended appeal was arguable, one arguable point sufficing. On the second limb, however, it found the applicant had failed to demonstrate the appeal would be rendered nugatory: allegations that Members of Parliament could not refund salaries paid under the 2013 Gazette Notice were bare and unsupported by affidavit evidence, and the burden had shifted to the respondents, who were content that refunds were possible. Critically, the court held that a stay would reverse rather than preserve the status quo, since MPs had always been paid under the 2013 Gazette Notice. Public interest, the court held, was best served by fast-tracking the main appeal. The application was dismissed with each party bearing its own costs. The High Court decision was not disturbed at this interlocutory stage. This ruling binds subordinate courts and tribunals on the Rule 5(2)(b) principles as articulated.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The draft memorandum of appeal raised arguable grounds concerning procedural impropriety and revival of the 2013 Gazette Notice

Reasoning

The court considered the draft memorandum and submissions and was satisfied the intended appeal was arguable, since even one arguable point suffices under Rule 5(2)(b). This satisfied only the first limb of the twin principles.

p. 3
02

Nugatory value of the intended appeal

Holding

The applicant failed to demonstrate the appeal would be rendered nugatory absent a stay

Reasoning

The applicant produced only bare allegations, without affidavit evidence, that Members of Parliament would be unable to refund monies paid under the 2013 Gazette Notice. The evidential burden having shifted, the respondents' position stood unrebuted; moreover, a stay would reverse, not preserve, the status quo since MPs have always been paid under the 2013 Notice.

p. 3
03

Public interest and expedition

Holding

Public interest is served by fast-tracking the main appeal rather than granting a stay

Reasoning

The court held that concerns about the wage bill and the possibility that MPs might not be re-elected and thus unable to refund salaries are best addressed by expediting the hearing of the main appeal, not by staying the High Court judgment.

p. 3

Legal principles established

#
  • An applicant under Rule 5(2)(b) must satisfy both limbs: an arguable appeal and that the appeal would be rendered nugatory absent a stay; one arguable point suffices for the first limb only.
  • Where an applicant alleges a respondent cannot refund the decretal sum, the evidential burden shifts to the respondent to show his resources, but bare allegations without affidavit evidence will not suffice.
  • A key objective of stay is preservation of the status quo pending appeal; a stay that would reverse the status quo ought not to be granted.

Court orders

#
  1. 1.Notice of Motion dated 8th January 2019 dismissed
  2. 2.Intended appeal to be listed for hearing on priority basis
  3. 3.Each party to bear its/his own costs in this application
On appeal from
High Court at Nairobi
Nairobi Judicial Review Misc. Appl. No. 686 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Salaries Remuneration Commission v Parliamentary Service Commission & 4 others [2019] KECA 721 (KLR)", Case Analysis (2019). Civil Application No. 9 of 2019 (UR. 8/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/721/eng@2019-05-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.