Ministry of Education & 3 others v Kenya Union of Domestic, Hotels Educational Institutions and Hospital Workers (KUDHEIHA) & another
The bottom line
#Kenya's Court of Appeal paused a KShs 13.8 billion university salary ruling, meaning public universities won't pay the disputed annual increments until the appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable; the key issue whether the ELRC judge misinterpreted the SRC's proposals so as to find that annual increments formed part of the CBA implementation is not frivolous.
The Court identified the key issue of the intended appeal as whether the learned judge misinterpreted the SRC's proposals to find that annual increments formed part of the CBA implementation. The applicants contend the increments were paid through the normal budgetary process between July 2017 and June 2020. The Court found this a bona fide issue warranting full argument, satisfying the first limb of the Rule 5(2)(b) test.
Whether the appeal would be rendered nugatory if stay is not granted
Yes. If payment is made and the appeal succeeds, reversing it would be lengthy and complicated; the applicants demonstrated the appeal would be rendered nugatory without a stay.
The Court noted the CBA has largely been implemented save for annual salary increments. Refusal of stay risked double payment of billions from public funds, and reversing such payment could be as lengthy and complicated as negotiating the CBA itself. Weighing the consequences against prejudice to the respondents, the nugatory limb was satisfied.
Whether there is still a subject matter to stay given substantial implementation of the CBA
The subject matter of the appeal remains intact and is not dependent on whether the CBA has run its course or a new CBA is being negotiated.
The respondents argued there was nothing to stay because most universities had implemented the CBA, which had run its life cycle. The Court held the intended appeal targets the finding on annual increments and resultant pension liabilities, raising the implementation figure from KShs 8.8 billion to KShs 13.812 billion; respondents remain free to claim the outstanding sums, so the subject matter survives.
Legal principles established
#- On a Rule 5(2)(b) application, it is sufficient if a single bona fide arguable ground of appeal is raised; an arguable appeal need not necessarily succeed.
- 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.
- In a Rule 5(2)(b) application the Court exercises an original, independent and discretionary jurisdiction to preserve the subject matter of the appeal.
Court orders
#- 1.Stay of execution of the judgment and orders of the ELRC dated 15 January 2021 granted, to remain in place until the appeal is heard and determined
- 2.Costs of the application to abide by the outcome of the appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC CBA 1 of 2020, CBA 2 of 2020 and CBA 3 of 2020
- Jurisdiction invoked
- Rules 5(2)(b) and 47 of the Court of Appeal Rules, and Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- University Academic Staff Union (UASU) v Ministry of Education & 5 others[2024] KECA 1905 (KLR)28 Mar 2024applied
Cite this brief
#Cite this brief
Caselaw, "Ministry of Education & 3 others v Kenya Union of Domestic, Hotels Educational Institutions and Hospital Workers (KUDHEIHA) & another", Case Analysis (2022). Civil Application E418 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/717/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.