Teachers Service Commission v Simon Kamau & 19 others [2014] KECA 596 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let the Teachers Service Commission take a multi-billion shilling teachers' pension dispute to the Supreme Court because it waited about three years.
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 applicant's intended appeal raises a matter of general public importance warranting certification under Article 163(4)(b) of the Constitution
- 2.Whether the interpretation and application of section 10(1) of the Pensions Act in light of a collective bargaining agreement is a substantial point of law with a significant bearing on public interest
- 3.Whether the point of law sought to be appealed arose in the courts below and was the subject of judicial determination
- 4.Whether the approximately three-year delay in filing the certification application was unreasonable and should defeat it
Key legal issues
#Whether a matter of general public importance arises for certification
The interaction between section 10(1) of the Pensions Act and collective bargaining agreements, affecting numerous public servants, taxpayers and future litigation, does constitute a matter of general public importance.
The court found the s.10/CBA question had been judicially determined below and transcends this case. It reasoned that growing numbers of public-sector trade unions will sign CBAs whose pension disputes will engage the Pensions Act; the decree covers retired teachers nationwide; and sums in the billions drawn from taxpayers are not trivial. All the Malcolm Bell principles (ix), (x) and the general public interest test were satisfied.
Whether the unexplained delay in filing the certification application defeats it
Yes. The approximately three-year delay was unreasonable and no satisfactory explanation was offered, so the application fails despite the merit of the certification question.
The judgment was delivered on 12 November 2010 but the application was only filed in September 2013. The applicant attributed the delay to consultation among state organs, i.e. government bureaucracy, which the court held unsatisfactory. Article 259(8) requires acts not done within a prescribed time to be done without unreasonable delay. The court also noted the need for rules prescribing a time frame.
Legal principles established
#- Where no specific time is prescribed for a certification application under Article 163(4)(b), the act must be done without unreasonable delay, and unexplained delay of years defeats the application.
- A certification matter must be one of law whose determination transcends the circumstances of the particular case, bears significantly on public interest, and must have been raised and judicially determined in the courts below.
Court orders
#- 1.The application for certification to appeal to the Supreme Court is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- null — this was an application for certification to appeal to the Supreme Court; the decision under review is the Court of Appeal judgment at Nakuru in Civil Appeal No. 300 of 2009 (Keiwua, Onyango Otieno & Nyamu, JJ.A.) delivered 12 November 2010
- Civil Appeal No. 300 of 2009 (Nakuru)
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution and Rules 42 and 43 of the Court of Appeal Rules (application for certificate of leave to appeal to the Supreme Court)
Relief refused
#Certificate/leave to appeal to the Supreme Court under Article 163(4)(b)
Although the court found that a matter of general public importance arose, the applicant was guilty of unreasonable delay of about three years in bringing the application, with no satisfactory explanation
Stay of execution regarding Nakuru JR Applications No. 7 of 2012 and No. 18 of 2012
Not granted, the application having failed on the ground of unreasonable delay
Costs
The application is dismissed with costs to the respondents.
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.
For a certification to issue in this regard to a party to move an appeal to the Supreme Court, the matter should be one of law requiring interpretation that indeed a substantial point of law to be determined has a bearing on public interest.
In our view, that explanation is not satisfactory and does not explain why it took the applicant about 3 years to make the application. We think the applicant is guilty of unreasonable delay.
For that reason the application fails and is dismissed with costs.
It is increasingly going to be a matter of serious focus as regards the Pensions Act vis a vis the CBAs. That constitutes a matter of great public importance.
There is no provision setting the time limit for applications of this nature. There is need in our view, for rules to be made to spell out the time frame within which applications for level/certification under Article 163(4)(b) of the Constitution must be presented.
Issues in the judgment
#The judgment inconsistently records the amount demanded as KShs.11,438,296,125/75 and elsewhere as over KShs.111 billion, figures that do not reconcile.
The Malcolm Bell case is cited with two different appeal numbers: Sup. No. 7 of 2013 (per respondents' counsel) and Supreme Court App. No. 1 of 2013 (by the court).
The judgment records the judgment under review as delivered on 12th November 2010 in the opening passage but respondents' counsel refers to it as delivered in October 2010.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Simon Kamau & 19 others [2014] KECA 596 (KLR)", Case Analysis (2014). Civil Application No. SUP 18 of 2013 (UR 10/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/596/eng@2014-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.