Teachers Service Commission v Robert Kyalo Kimiti

2. The Teachers Service Commission, which is the Applicant herein, was aggrieved by the judgement, and on 19th April 2024 it lodged a Notice of Appeal dated 15th April 2024 in the ELRC. The said Applicant thereafter led an application in this Court dated 12th August 2024, seeking a stay of execution of the said judgment. The application is supported by adavits sworn on 12th August 2024 and 23rd August 2024 by Kenneth Marangu and Mollet Sango respectively, who are Ag. Deputy Directors in charge of the Human Resources Management and Development Directorate of the Applicant. 3. The main grounds for the application are that the Applicant’s appeal raises substantial and weighty issues of law with high probability of success, as demonstrated in the Draft Memorandum of Appeal that it has annexed; in the event that the impugned judgement is enforced, the intended appeal will be rendered nugatory and the Applicant denied its constitutional right of appeal; the Applicant’s operations will be crippled and it will be rendered dysfunctional since the learned trial judge has declared its Human Resources Manual of 2018 null and void; the Applicant will be exposed to numerous adverse actions; the Applicant does not have the budgetary allocation to come up with the alleged regulations as ordered by the Court within the short period ; the judgment does not accord to the budgetary making process as envisaged by the Finance Act and Public Finance Management Act; and the Respondent may not be able to refund the amount of costs of the suit in the event the Applicants' appeal is successful. 4. The application was opposed by the Respondent by way of a replying adavit he swore on 16th August 2024. He averred that the Applicant has not given any explanation for the delay in bringing the present application 120 days after the delivery of judgment on 8th April 2024, and why it decided to le an application at the superior court on 25th April, 2024 yet it had already lodged a Notice of Appeal on 19th April 2024. Further, that he will be prejudiced and also suer injustice if the prayers contained in the application are granted, since there is a judgment in his favour. 5. We heard the application on 14th October 2024, when learned counsel Mr. Cavin Anyuor, appearing together with Mr. Isaac Ochieng for the Applicant, highlighted written submissions dated 23rd August 2024; while learned counsel Mr. Wachira, holding brief for Ms. Njeri Ngunjiri for the Respondent highlighted written submissions dated 26th August 2024. We need to clarify at the outset that in an application such as the instant one, 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. See Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others [2013] eKLR. 6. On the rst limb of arguability, Mr. Anyuor urged that the Applicant has raised 13 grounds of appeal in its Draft Memorandum of Appeal on three fundamental issues. The rst is whether the Applicant’s Human Resources Manual is a statutory instrument within the meaning of the Statutory Instruments Act, or is an internal administrative guideline. Secondly, whether section 47 of the Teachers Service Commission Act is couched in mandatory terms and requires the Applicant’s Human Resource Manual to be developed through regulations. Lastly, whether the Applicant’s Human Resources Manual of 2018 is properly established pursuant to sections 7 and 10 of the Employment Act. Mr. Wachira on his part submitted that the grounds in the Draft Memorandum of Appeal have failed to explain why the Applicant has not developed regulations as required under Section 47(l)(a) of the Teachers Service Commission Act. 7. On the nugatory limb, Mr. Anyuor’s position was that if the stay is not granted, the Applicant will not be able to recover the awarded costs, which averment was not controverted by the Respondent. In addition, that by 1st May 2025 there will be a constitutional crisis since the twelve months granted by the ELRC for enactment of regulations will have lapsed and the Applicant is not in control of the legislative calendar, and the Applicant’s Human Resource Manual of 2018 will be nullied. Mr. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1927/eng@2024-12-20 2

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Wachira in reply stated that the trial court found 12 months to be sucient to promulgate the relevant regulations, and that there is no proof that the Respondent will not be able to refund the costs he was awarded. 8. We have considered the application, the adavits and the rival submissions. We note that the Draft Memorandum of Appeal has raised issues revolving around the legal nature of the Applicant’s Human Resource Manual of 2018 and its legality, which will need to be resolved by this Court. Bearing in mind that an arguable appeal is one that need not necessarily succeed, we are persuaded that the appeal is not frivolous and is therefore arguable. 9. On the nugatory aspect, the Applicant asserts that it will face a constitutional and administrative crisis once the time it was granted for enacting the required regulations lapses, as its Human Resource Manual will not be operational, coupled with the fact that it has no way of ensuring the promulgation of the regulations within twelve months as it is not in control of the Parliamentary calendar. We are in agreement that in the event of the time allocated by the ELRC lapsing without the promulgation of the regulations, this appeal will be rendered nugatory as the issue of the legality of the Applicant’s Human Resources Manual of 2018 will become moot, and there will be a lacuna in the human resources management of the Applicant. 10. In the circumstances, we nd 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 - Robert Kyalo Kimiti vs TSC & Kenneth Marangu and all the consequential orders, pending the hearing and determination of the appeal led therefrom. The costs of the application shall abide by the outcome of the appeal. 11. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024. P. NYAMWEYA .................................. JUDGE OF APPEAL L. ACHODE ................................ JUDGE OF APPEAL W. KORIR ................................ JUDGE OF APPEAL I certify that this is the true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1927/eng@2024-12-20 3

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