The Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others
The bottom line
#Supreme Court cannot hear appeals from Court of Appeal interim rulings until the main case is finished.
What this practically means
#The Supreme Court dismissed a case brought by the Parliamentary Service Commission about MP housing allowances. The Court said it cannot hear challenges to interim decisions made by the Court of Appeal while the main case is still ongoing there. The Commission must wait until the Court of Appeal fully decides the main dispute before coming to the Supreme Court. This keeps cases moving in the right order through Kenya's court system.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, in the absence of a substantive judgment of the Court of Appeal.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal arising from an interlocutory ruling of the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, where the substantive appeal is still pending before the Court of Appeal.
The Supreme Court lacks jurisdiction to entertain such an application as it is premature and does not meet the threshold under Article 163(4)(a) of the Constitution.
The Court applied its settled precedent in Teachers Service Commission v Kenya National Union of Teachers & 3 others, which held that the Supreme Court cannot entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5(2)(b) when there is no appeal or intended appeal pending before the Supreme Court, and the substantive appeal before the Court of Appeal is yet to be determined. The Court found that the application before it was tangential and would involve premature comments on the merits of issues yet to be adjudged by the Court of Appeal.
Legal principles established
#- Supreme Court jurisdiction under Article 163(4)(a) requires a final decision from the Court of Appeal, not an interim ruling.
- Challenging a Court of Appeal's discretion under Rule 5(2)(b) is premature if the main appeal is still pending.
- The Supreme Court will not comment on the merits of a case that the Court of Appeal has not yet finally decided.
- Parties cannot bypass the proper appellate process by appealing interim orders before the main case ends.
- The Supreme Court's jurisdiction is strictly limited by the Constitution and cannot be expanded by agreement of the parties.
Court orders
#- 1.The Notice of Motion dated 21st December 2021 is dismissed.
- 2.There shall be no order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. E017 of 2021
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Stay of execution pending appeal
The Court lacks jurisdiction to entertain the application challenging the exercise of discretion by the Court of Appeal under Rule 5(2)(b) in the absence of a substantive judgment of the Court of Appeal.
Costs
There shall be no order as to costs.
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.
we find that the Notice of Motion dated 21st December 2021 challenging the exercise of discretion by the Court of Appeal under Rule 5(2)(b)of the Court of Appeal Rules, in the absence of a substantive judgment of the Court of Appeal, this application is premature and does not meet the threshold under Article 163 (4) (a) of the Constitution.
we find that this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5 (2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court
There shall be no order as to costs.
Key timeline
#Practical implications
#Wait for final Court of Appeal judgment
Do not file Supreme Court applications challenging Court of Appeal interim rulings under Rule 5(2)(b) while the main appeal is still pending. Such applications will be dismissed for lack of jurisdiction. Instead, advise clients to pursue the substantive appeal first and only approach the Supreme Court after a final determination.
Plan for longer dispute timelines
If you are involved in litigation that reaches the Court of Appeal, interim orders (like stays) cannot be fast-tracked to the Supreme Court. You must wait for the full appeal to be decided before any Supreme Court challenge. Budget for the full timeline of the Court of Appeal process before considering a final appeal.
Know your appeal route in Kenya
If you lose an interim ruling at the Court of Appeal, you cannot immediately go to the Supreme Court. You must first let the Court of Appeal finish the entire case. Only after that final decision can you appeal to the Supreme Court. This prevents piecemeal appeals and saves you time and legal costs.
Frequently asked questions
#Can I appeal a Court of Appeal interim order directly to the Supreme Court in Kenya?+
No. The Supreme Court ruled it lacks jurisdiction to hear appeals from interim orders under Rule 5(2)(b) while the main case is still pending at the Court of Appeal. You must wait for the Court of Appeal to issue a final judgment first.
What is Rule 5(2)(b) of the Court of Appeal Rules in Kenya?+
Rule 5(2)(b) allows the Court of Appeal to grant interim orders like stays or injunctions while an appeal is pending. This case confirms that decisions under this rule cannot be challenged at the Supreme Court until the main appeal is fully decided.
Why did the Supreme Court dismiss the Parliamentary Service Commission case in Kenya?+
The Supreme Court dismissed it because the main dispute about MP housing allowances was still being heard by the Court of Appeal. The Court said it cannot hear challenges to interim rulings until the Court of Appeal finishes the entire case.
What does Article 163(4)(a) of Kenya's Constitution say about Supreme Court appeals?+
Article 163(4)(a) allows appeals to the Supreme Court from Court of Appeal decisions. The Supreme Court clarified this means final decisions, not interim rulings. You cannot use this article to challenge a temporary order before the main case ends.
Cite this brief
#Cite this brief
Caselaw, "The Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others", Case Analysis (2022). Application E026 of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/21/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.