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Court of AppealAllowedCivil Application E407 of 2024

Teachers Service Commission v Robert Kyalo Kimiti

Court of Appeal
20 December 2024
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal paused an order requiring the Teachers Service Commission to replace its HR Manual with regulations, protecting the Commission pending appeal.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on the Teachers Service Commission's application for stay of execution of a judgment of the Employment and Labour Relations Court (B. Ongaya J, 8 April 2024) in ELRC Petition No. E068 of 2023. The ELRC had declared that the Commission must promulgate, by 1 May 2025 and in accordance with the Statutory Declarations Act, regulations under section 47(1)(a) of the Teachers Service Commission Act, 2012 governing appointment, discipline and removal of secretariat staff; declared the Commission's Human Resources Manual for Secretariat Staff, 2018 ultra vires section 47(1)(a) to the extent it should have been anchored on such regulations; and awarded the petitioner 50% of costs. The Commission lodged a notice of appeal and sought stay, arguing the appeal was arguable and would be rendered nugatory if the judgment were enforced, since it could not control the parliamentary calendar to promulgate regulations within twelve months and its operations would be crippled by the nullification of the Manual. The Respondent opposed, citing unexplained delay of 120 days in filing the application. Applying the Stanley Kangethe Kinyanjui v Tony Ketter twin test, the Court found the draft memorandum of appeal raised arguable issues on the legal nature and legality of the Manual, and that lapse of the ELRC's deadline without promulgation would render the appeal moot and nugatory. The Court granted a stay of execution of the judgment and all consequential orders pending the appeal, with costs of the application to abide the appeal's outcome. The decision below was not disturbed; the ruling preserves the status quo pending appeal.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if stay is not granted and the appeal succeeds, the appeal will be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The draft Memorandum of Appeal raised issues on the legal nature and legality of the Human Resources Manual 2018 that require resolution; the appeal is arguable.

Reasoning

The Court noted the draft memorandum raised 13 grounds on three issues: whether the Manual is a statutory instrument under the Statutory Instruments Act or an internal guideline; whether section 47 of the TSC Act is mandatory; and whether the Manual is properly established under the Employment Act. Since an arguable appeal need not succeed, the threshold was met.

p. 3
02

Nugatory value of the appeal

Holding

If the time granted by the ELRC for promulgation of regulations lapses without promulgation, the appeal will be rendered nugatory because the legality issue will become moot and a lacuna will arise in the Applicant's human resources management.

Reasoning

The Applicant, not being in control of the Parliamentary calendar, could not guarantee promulgation of the regulations within twelve months. If enforcement proceeded and the deadline lapsed, the Manual would be nullified and the appeal's subject matter would become moot, defeating the appeal even if successful.

p. 3

Legal principles established

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  • In a stay-of-execution application pending appeal, the applicant must demonstrate that the appeal is arguable and that, if the orders sought are not granted and the appeal eventually succeeds, the appeal will be rendered nugatory.
  • An arguable appeal need not necessarily succeed; it suffices that it is not frivolous.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 8th April 2024 by the ELRC at Nairobi (B. Ongaya J) in ELRC Petition No. E068 of 2023 and all consequential orders, pending the hearing and determination of the appeal
  2. 2.Costs of the application to abide by the outcome of the appeal

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Petition No. E068 of 2023
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to grant stay of execution pending appeal (Rule 5(2)(b) application, not expressly stated in the ruling)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

an applicant is required to demonstrate that the appeal is arguable, and that if the orders sought are not granted and the appeal eventually succeeds, the appeal will be rendered nugatory
p. 2Threshold for stay of execution pending appeal
we find that the Applicant has met the threshold for grant of a stay, and we hereby order that there shall be a stay of execution of the judgment delivered on 8th April 2024 by the Employment and Labour Relations Court (ELRC) at Nairobi (B. Ongaya J) in ELRC Petition No. E068 of 2023
Final orders - stay granted
The costs of the application shall abide by the outcome of the appeal.
p. 3Costs of the application

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, "Teachers Service Commission v Robert Kyalo Kimiti", Case Analysis (2024). Civil Application E407 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1927/eng@2024-12-20

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