Salaries Remuneration Commission v Parliamentary Service Commission & 4 others [2019] KECA 721 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, unless a stay is granted, the intended appeal would be rendered nugatory
- 3.Whether public interest warrants a stay of execution
Key legal issues
#Arguability of the intended appeal
The draft memorandum of appeal raised arguable grounds concerning procedural impropriety and revival of the 2013 Gazette Notice
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.
Nugatory value of the intended appeal
The applicant failed to demonstrate the appeal would be rendered nugatory absent a stay
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.
Public interest and expedition
Public interest is served by fast-tracking the main appeal rather than granting a stay
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.
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.Notice of Motion dated 8th January 2019 dismissed
- 2.Intended appeal to be listed for hearing on priority basis
- 3.Each party to bear its/his own costs in this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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)
Relief refused
#Stay of execution of the High Court judgment quashing Gazette Notice No. 6517 of 7th July 2017
Intended appeal arguable but not shown to be rendered nugatory; a stay would reverse the status quo as MPs have been paid under the 2013 Gazette Notice
Costs
Each party is to bear its/his own costs in this application.
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.
It is in the interest of justice that a stay order should not be granted in this matter in order to preserve and maintain the status quo.
For an applicant to succeed he must not only show that his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of that appeal will be rendered nugatory.
Once an applicant expresses a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly, within his knowledge.
We order that the Notice of Motion dated 8 th January 2019 be and is hereby dismissed. We direct the intended appeal be listed for hearing on priority basis. Each party is to bear its/his own costs in this application.
Issues in the judgment
#Slight inconsistency in date of delivery: orders recite 24th May 2019 while captioned heading in ruling text is consistent; no internal contradiction found on the merits
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.