Salaries Remuneration Commission v County Government of Kakamega & 4 others [2019] KECA 745 (KLR)
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
#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 the intended appeal will be rendered nugatory if a stay of execution is not granted
- 3.Whether public interest warrants the grant of a stay of execution pending appeal
Key legal issues
#Whether the intended appeal by the Salaries and Remuneration Commission is arguable
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.
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.
Whether the intended appeal would be rendered nugatory if stay is not granted
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.
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.
The role of public interest in stay of execution applications
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.
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.
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.The Notice of Motion dated 8th January 2019 seeking stay of execution is dismissed
- 2.The intended appeal be listed for hearing on priority basis
- 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.
Wrote the judgment
Wrote the judgment
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
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.
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.
A stay order should not be a recipe for confusion in any legal regime.
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.
Issues in the judgment
#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.
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.