Teachers Service Commission v Kenya National Union of Teachers & 2 others [2015] KEELRC 157 (KLR)
The bottom line
#The Employment and Labour Relations Court refused to pause its orders requiring the Teachers Service Commission to pay teachers' September 2015 salaries, despite an appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court could entertain the respondents' concerns raised at a mention without a formal application
The Court may consider any live issue at any stage without undue regard to technicality, though only informal directions can issue from a mention; substantive orders require a formal application.
The Court invoked article 159 of the Constitution and the policy that justice be dispensed without procedural technicalities where no party suffers prejudice. It held that a mention can yield informal directions, such as inviting an alleged contemnor to show cause, but substantive enforcement requires the matter to be properly moved.
Whether the appeal was arguable so as to warrant a stay pending appeal
None of the grounds advanced presented an arguable point with a high chance of success; the interlocutory declaration on the strike did not bind the trial court, and the September salaries order did not contravene section 79(6).
The Court held that interlocutory orders preserve positions pending trial and may differ from the final determination. On payment, section 79(6) confers discretion rather than prohibition, and a constitutional order made payment obligatory. The difficulty of recovering paid wages was unpersuasive since lawful deductions could be made if the appeal succeeded.
Whether the trial court should assess the prospects of its own decision on appeal
The Court declined to reconsider its own judgment, noting intellectual fatigue and leaving assessment of the appeal's merits to the Court of Appeal.
Relying on Kuloba J in East African Breweries v Castle Brewing, the Court held it would be invidious for the trial judge to reassess the merits to gauge the appeal's prospects, and left any stay of the judgment to the appellate court.
Legal principles established
#- A court may deal at any stage with any live issue in a matter before it without undue regard to procedural technicality, whether or not the matter is listed as a formal application.
- Section 79(6) of the Labour Relations Act gives an employer a discretion to pay or not pay wages for a strike period; it does not prohibit payment, and a court order grounded on the Constitution renders payment obligatory.
- An interlocutory declaration that a strike is unprotected does not bind the trial court, which may reach a different conclusion after full hearing of evidence and arguments.
- A trial court should not reconsider its own decision to assess the prospects of an appeal against it; that function belongs to the appellate court.
Court orders
#- 1.The Court declines to grant an order of stay of the orders issued on 25th September 2015
- 2.The petitioner's application dated 28th October 2015 is dismissed
- 3.The application is dismissed with costs to the respondents
- Jurisdiction invoked
- Article 162(2) of the Constitution / Employment and Labour Relations Court Act (court deciding application for stay pending appeal to Nairobi Civil Appeal No. 257 of 2015)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Kenya National Union of Teachers & 2 others [2015] KEELRC 157 (KLR)", Case Analysis (2015). Petition No. 5 of 2015 (number not expressly stated in the judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/157/eng@2015-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.