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Court of AppealDismissedNot stated in the judgment (application under Rule 5(2)(b) of the Court of Appeal Rules in the intended appeal from Petition No. 208 of 2019, consolidated with Petition Nos. 185 of 2019 and 339 of 2019)· [2021] KECA 234 (KLR)

Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others (Civil Application E409 of 2020) [2021] KECA 234 (KLR)

Court of Appeal of Kenya
3 December 2021
WKW. KaranjaSKS. Gatembu KairuJMJ. Mohammed
2,952 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal refused to pause a ruling that MPs' house allowances are set solely by the Salaries and Remuneration Commission, meaning recovery of payments can proceed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Gatembu Kairu and J. Mohammed, JJAA) on a Notice of Motion dated 17th December 2020 brought under Rule 5(2)(b) of the Court of Appeal Rules by the Parliamentary Service Commission, the Clerks of the Senate and the National Assembly, and Members of Parliament. The applicants sought a stay of execution of the High Court judgment of 10th December 2020 in Petition No. 208 of 2019 (consolidated with Petition Nos. 185 and 339 of 2019), which declared that setting and approving accommodation or house allowances for Members of Parliament is exclusively vested in the Salaries and Remuneration Commission under Article 230(4) and (5), quashed the PSC's decision by certiorari, and ordered the Clerks to recover within twelve months all such amounts paid to MPs. The Court applied the twin principles of arguability and nugatory aspect, together with the public interest principle from Gatirau Peter Munya. It found the intended appeal arguable on the question of the respective mandates of the PSC and the SRC over MPs' allowances, but held that the applicants failed on the nugatory limb: the disputed payments had been stopped, any recoveries would not be burdensome, and if the appeal succeeded the remedy would simply be payment of arrears. Since the twin principles are conjunctive, the application failed. The Court dismissed the application with costs in the appeal and directed that the substantive appeal be fixed for hearing on a priority basis. The decision does not disturb the High Court judgment; it concerns only the interlocutory stay application.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the appeal arguable, particularly on the question of the respective mandates of the PSC and the SRC over MPs' allowances.

Reasoning

The Court applied the arguability limb of the Rule 5(2)(b) test, holding that an applicant need only demonstrate one bona fide issue. It found that the issue of the overlap between the roles of the Parliamentary Service Commission and the Salaries and Remuneration Commission in determining MPs' allowances and benefits was germane and would constructively engage the Court's mind.

p. 6
02

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

Holding

The Court held the nugatory limb was not satisfied: recoveries could be made if the appeal failed, and arrears could be paid if it succeeded.

Reasoning

The Court noted that the disputed payments had been stopped, so any recoveries would not be burdensome; conversely, if the appeal succeeded, the remedy would be payment of arrears. Since the consequences in either scenario were reversible, the appeal could not be rendered nugatory. Because the two limbs are conjunctive, failure on the nugatory aspect was fatal to the application notwithstanding arguability.

p. 6

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs, which are conjunctive; establishing only one does not suffice
  • An appeal is arguable if it is not frivolous and raises a bona fide issue deserving full consideration; even one bona fide issue suffices
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or, if not reversible, whether damages will reasonably compensate the aggrieved party

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.The applicants to pay costs of the application in the appeal
  3. 3.The substantive appeal to be fixed for hearing on a priority basis
On appeal from
High Court of Kenya, Constitutional and Human Rights Division at Nairobi
Petition No. 208 of 2019 (consolidated with Petition Nos. 185 of 2019 and 339 of 2019)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others (Civil Application E409 of 2020) [2021] KECA 234 (KLR)", Case Analysis (2021). Not stated in the judgment (application under Rule 5(2)(b) of the Court of Appeal Rules in the intended 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/2021/234/eng@2021-12-03

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