Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others (Civil Appeal E017 of 2021) [2025] KECA 275 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Parliament's challenge over MP house allowances, confirming that the Salaries and Remuneration Commission alone sets those allowances.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court correctly interpreted article 127(6)(a) and article 230(4)(a) of the Constitution in holding that the power to set house allowance for MPs vests exclusively in the SRC
- 2.Whether the SRC acted ultra vires its constitutional and statutory mandate in capping the number of remunerable sittings that MPs and the PSC could hold
Key legal issues
#Interpretation of article 127(6)(a) vs article 230(4)(a): who sets house allowances for MPs
The issue is no longer open for determination; by engaging the SRC and accepting the remuneration set in Gazette Notice of 9th August 2023, the PSC admitted the SRC's mandate and compromised the grounds on this issue.
Counsel for the appellants admitted that the High Court judgment had been complied with and that the PSC had engaged the SRC resulting in the 2023 Gazette Notice setting MPs' remuneration including a house allowance. The Court held that this admission of the SRC's mandate settled the issue of house allowances, leaving nothing for the Court to determine on the interpretation question.
Whether SRC's capping of remunerable sittings was ultra vires its mandate
The issue is moot; the gazette notice resulting from the compromise capped only maximum monthly sitting allowances, not the number of meetings, and the PSC submitted to the SRC's supervisory role.
The Court found the appellants' fate sealed when they engaged the SRC and compromised remuneration. The resulting gazette notice shows SRC capped maximum monthly earnings from committee sitting allowances, not the number of committee meetings. No live controversy remains on this limb either, rendering the appeal academic.
Mootness as a bar to determination of the appeal
The appeal is moot because the compromise between the parties and full compliance with the High Court order deprived the controversy of practical significance.
Applying the definition of a moot matter, the Court held that the events after the High Court judgment — the 2023 Gazette Notice and recovery of all house allowances from MPs — placed the dispute beyond the reach of the law. An academic suit with no practical utilitarian value will not be entertained.
Legal principles established
#- Where parties engage each other and compromise an issue, and a superior court's order has been fully complied with, a party cannot re-open the appeal on that settled issue; the controversy is moot.
- Under the High Court decision as appealed from, the setting and approval of accommodation or house allowances to MPs is exclusively vested in the SRC under article 230(4) and (5) of the Constitution; this position was effectively conceded by the PSC's subsequent Gazette Notice and stands undisturbed.
Court orders
#- 1.Appeal dismissed
- 2.Appellants to bear the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Constitutional and Human Rights Division, Nairobi
- Petition No 208 of 2019 (consolidated with Petition Nos 185 of 2019 and 339 of 2019)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's judgment in consolidated constitutional petitions (constitutional and human rights appeals to the Court of Appeal)
- Consolidated with
- Petition No 185 of 2019, Petition No 339 of 2019
Relief refused
#Setting aside of the High Court judgment of December 10, 2020 and substitution with dismissal of Petitions 208 and 185 of 2019 and allowance of Petition 339 of 2019
The appeal is moot: the PSC subsequently engaged the SRC and accepted its mandate through Gazette Notice of 9th August 2023, and the High Court's recovery order was fully complied with, leaving no live controversy
Costs
Appellants shall bear the costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having come to the conclusion we have of this appeal, we find that the only order that commends itself to us is to dismiss this appeal, which we hereby do. We order that the appellants shall bear the costs of the appeal.
The appellants in their own confession before us admitted that the judgment of the superior court has been fully complied with and all payments made to MPs under the ‘accommodation/facilitation/ house allowance’ fully deducted from the MPs salary.
A matter is moot if further legal proceedings with regard to it can have no efiect, or events have placed it beyond the reach of the law.
This being the first appellate court we are required to analyze, evaluate, assess, weigh, interrogate and scrutinize the pleadings, the arguments of parties, cases relied upon and the law and arrive at our own independent conclusion
Issues in the judgment
#The judgment recites the memorandum of appeal as dated January 14, 2020, which precedes the High Court judgment date of December 10, 2020 that it appeals against; the date appears erroneous in the judgment itself.
The citation for Okiya Omtatah Okoiti & Another v Nairobi City County Assembly & 5 others is printed as '[202] eKLR', an incomplete year.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others (Civil Appeal E017 of 2021) [2025] KECA 275 (KLR)", Case Analysis (2025). Court of Appeal at Nairobi (Constitutional and Human Rights Division appeal from Petition No 208 of 2019 consolidated with Petition Nos 185 of 2019 and 339 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/275/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.