[2024] KEHC 5893 (KLR)
The court declined to grant a stay of execution because the impugned actions of the respondents had been declared unconstitutional, and under Article 2(4) of the Constitution, any law or action inconsistent with the Constitution is void to the extent of the inconsistency. Granting a stay would undermine the...
Source-derived case information.
- Citation
- [2024] KEHC 5893 (KLR)
- Parties
- Applicant: Peter Mwangi Gachiri; Respondent: The Hon Attorney General; Respondent: The Salaries And Remuneration Commission; Interested Party: Kenya Judges Welfare Association; Interested Party: The Judicial Service Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E304 of 2023
- Procedural Posture
- Stay Application / Post Judgment Ruling on Stay and Ancillary Orders
- Outcome
- Application for stay of execution declined; order for supply of certified copies granted.
- Judges
- EC Mwita, PM Nyaundi, LN Mugambi
- Legal Topics
- Stay of Execution, Unconstitutionality of State Action, Remedies Under Constitution, Effect of Declarations, Judicial Remuneration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mwangi Gachiri
Applicant
The Hon Attorney General
Respondent
The Salaries And Remuneration Commission
Respondent
Kenya Judges Welfare Association
Interested Party
The Judicial Service Commission
Interested Party
Procedural Posture
Stay Application / Post Judgment Ruling on Stay and Ancillary Orders
Legal Issues
- 1 Whether a stay of execution should be granted after a declaration of unconstitutionality of the respondents' actions.
- 2 Whether the supply of certified copies of proceedings and judgment should be ordered.
Ratio Decidendi
The court declined to grant a stay of execution because the impugned actions of the respondents had been declared unconstitutional, and under Article 2(4) of the Constitution, any law or action inconsistent with the Constitution is void to the extent of the inconsistency. Granting a stay would undermine the constitutional declaration and perpetuate an unconstitutional state of affairs. The court further ordered that certified copies of the proceedings and judgment be supplied upon payment of copying charges, if applicable.
Court Disposition
Application for stay of execution declined; order for supply of certified copies granted.
Orders
- Application for stay of execution is declined.
- Certified copies of proceedings and judgment to be supplied upon payment of copying charges if applicable.
Full Case Text
Judgment text and source record
29 paragraphs
Gachiri v Attorney General & another; Kenya Judges Welfare Association & another (Interested Parties) (Constitutional Petition E304 of 2023) [2024] KEHC 5893 (KLR) (Constitutional and Human Rights) (24 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5893 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Constitutional and Human Rights
Constitutional Petition E304 of 2023
EC Mwita, PM Nyaundi & LN Mugambi, JJ
May 24, 2024
Between
Peter Mwangi Gachiri
Petitioner
and
The Hon Attorney General
1st Respondent
The Salaries And Remuneration Commission
2nd Respondent
and
Kenya Judges Welfare Association
Interested Party
The Judicial Service Commission
Interested Party
Ruling
1. Upon delivery of the Judgment this morning, the 1st and 2nd Respondents made oral applications as follows: -i.The 1st Respondent applied for certified copy of the proceedings and judgment and a stay of execution for 60 days against the processing of payment as ordered in Order No. 4 of the Judgment.ii.2nd Respondent applied for 60 days stay of execution of the judgment to enable the filing of an appeal.
2. The Petitioner does not oppose the application for stay but was concerned about the duration of the stay which he says is too long and that a 30 days stay would be sufficient.
3. The 1st and 2nd interested parties are opposed to the stay of execution on the ground that the actions of the respondent have been declared unconstitutional.
4. We have considered the application and declined to grant and order of stay for the reason that our decision has declared the impugned actions unconstitutional and by dint of Article 2(4) the declaration makes the decision by the Salaries Remuneration Commission to be void.
5. Issuing an order of stay would go against the spirit of Article 2(4) of the Constitution.
6. As regards copies of proceedings and judgment, we order that they be supplied upon payment of copying charges if applicable.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF MAY, 2024. .......................................................E C MWITAJUDGE.......................................................P N NYAUNDIJUDGE.......................................................L N MUGAMBIJUDGE