Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 8 of 2019

Salaries Remuneration Commission v County Government of Kakamega & 4 others [2019] KECA 745 (KLR)

Court of Appeal of Kenya
24 May 2019
2,456 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 stop a High Court decision quashing the SRC's 2017 county salary reductions, meaning existing pay structures stay unchanged while the main appeal proceeds.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Ouko, P, Asike-Makhandia and Otieno-Odek, JJA) on a notice of motion dated 8th January 2019 by the Salaries and Remuneration Commission seeking stay of execution of a High Court judgment of 10th December 2018 (G. V. Odunga, J) in Nairobi Judicial Review No. 5 of 2018. The High Court had quashed by certiorari Gazette Notice No. 6518 of 7th July 2017, by which the Commission reviewed downwards the salaries of State Officers in county governments, finding the promulgation procedurally improper because affected officers were not afforded public participation or a hearing. Applying the settled twin principles under Rule 5(2)(b) of the Court of Appeal Rules, the Court accepted that the intended appeal was arguable on the annexed draft memorandum. However, it held the nugatory test was not met: there was no evidentiary demonstration that State officers or Members of County Assemblies were impecunious or unable to refund monies paid, noting that the burden shifts to a respondent once inability to repay is asserted. The Court further reasoned that granting a stay would create confusion and legal lacuna in the framework governing remuneration, whereas refusing it preserved the status quo. Public interest was addressed by directing that the intended appeal be heard on a priority basis. The application was dismissed with each party bearing its own costs. The application was heard back to back with Civil Application No. 9 of 2019 involving the Parliamentary Service Commission. This ruling binds subordinate courts on the principles governing stay of execution pending appeal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal will be rendered nugatory if a stay of execution is not granted
  3. 3.Whether public interest warrants the grant of a stay of execution pending appeal

Key legal issues

#
01

Whether the intended appeal by the Salaries and Remuneration Commission is arguable

Holding

The court was satisfied, upon perusing the draft memorandum of appeal, that the intended appeal raising grounds on procedural propriety of Gazette Notice No. 6518 of 2017 and validity of the 2013 Gazette Notices is arguable.

Reasoning

The applicant annexed a draft memorandum of appeal itemising grounds including that the judge erred in finding procedural impropriety, erred in finding the 2013 Gazette Notices valid, and failed to find they had lapsed through effluxion of time. The court found these grounds raised arguable points, satisfying the first limb of the Rule 5(2)(b) test without deciding their ultimate merit.

p. 3
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

The applicant failed to demonstrate nugatory aspect: there was no evidence that state officers could not refund monies paid, and refusing the stay preserved the status quo.

Reasoning

Save for bare allegations, no affidavit evidence demonstrated that state officers and Members of County Assembly would be unable to refund monies paid under the 2013 Gazette Notices, nor prima facie impecuniosity. All parties confirmed state officers were being paid under the 2013 Gazette Notice, so refusing the stay preserved the existing position. The court also held a stay should not create confusion in the legal framework governing remuneration.

p. 3
03

The role of public interest in stay of execution applications

Holding

Public interest in expeditious resolution of the dispute over state officers' remuneration could be met by fast-tracking the main appeal rather than granting a stay.

Reasoning

The court accepted that the dispute involving salary and remuneration of state officers and members of the County Assembly is of public interest and should be resolved expeditiously. However, it held that the public interest concern and apprehension that members of the County Assembly might not refund monies could be addressed by prioritising the hearing of the main appeal, rather than by granting a stay of the certiorari order.

p. 3

Legal principles established

#
  • An applicant under Rule 5(2)(b) must satisfy the twin tests: an arguable appeal and that the appeal would be rendered nugatory if stay or injunction is not granted.
  • While the legal duty is on the applicant to prove that an appeal would be rendered nugatory because a respondent cannot repay the decretal sum, once the applicant expresses that belief, the evidential burden shifts to the respondent to show the resources he has.
  • A stay of execution should not be granted where it would create confusion and a legal lacuna in the existing legal regime; a stay order should not be a recipe for confusion.

Court orders

#
  1. 1.The Notice of Motion dated 8th January 2019 seeking stay of execution is dismissed
  2. 2.The intended appeal be listed for hearing on priority basis
  3. 3.Each party is to bear its own costs in this application

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

William Ouko
W. OukoJA
Currently serving
majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
Nairobi Judicial Review No. 5 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution pending appeal
Consolidated with
Civil Application No. 9 of 2019 (Salaries and Remuneration Commission -v- Parliamentary Service Commission & Others) - heard back to back with this application

Relief refused

#

Order of stay of execution of the High Court judgment and decree of 10th December 2018

The intended appeal is arguable but the applicant failed to demonstrate that it would be rendered nugatory without a stay; no evidence showed state officers could not refund monies, and a stay would create confusion in the legal framework for salaries while refusing it preserves the status quo

p. 3

Costs

Each party is to bear its 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.

for an application under Rule 5(2)(b) to succeed, the applicant must satisfy the Court on two matters, namely that the appeal or intended appeal is an arguable one, that is, that it is not a frivolous appeal, that if an order of stay or injunction, as the case may be, is not granted, the appeal or the intended appeal were it to succeed, would have been rendered nugatory by the refusal to grant the stay or the injunction.
p. 3Twin principles for stay of execution under Rule 5(2)(b)
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.
p. 3Shift of evidential burden on ability to refund decretal sum
A stay order should not be a recipe for confusion in any legal regime.
p. 3Stay not to create legal confusion
Accordingly, we decline to grant an order of stay as prayed. The Notice of Motion dated 8 th January 2019 be and is hereby dismissed. We direct that the intended appeal be listed for hearing on priority basis. Each party is to bear its own costs in this application.
p. 3Final orders - dismissal of stay application

Issues in the judgment

#
minor

The applicant's written submissions state the public interest concern is loss of monies illegally paid to state officers serving in Parliament, yet the application concerns state officers in County Governments - an apparent drafting error conflating the companion application with this one.

minor

The judgment in summarising the Malawi authority quotes the supporting cases as though recited by the court, but these were cited within the quoted passage of Tambala, JA's judgment in the Anti-Corruption Bureau case; treatment recorded accordingly.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Salaries Remuneration Commission v County Government of Kakamega & 4 others [2019] KECA 745 (KLR)", Case Analysis (2019). Civil Application No. 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/745/eng@2019-05-24

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