Maasai Mara University v Daniel K. Cheboi
The bottom line
#Kenya's Court of Appeal paused a ruling reinstating four former university staff, including a cashier, because putting a distrusted employee back in a trusted job risked serious losses.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The court held the appeal arguable because the trial court's order of reinstatement raised the question whether specific performance in an employment contract was permissible.
The draft memorandum of appeal alleged that the trial judge violated section 49 of the Employment Act by ordering reinstatement without considering the statutory circumstances of termination, practicability of reinstatement, and the common-law bar on specific performance of personal service contracts. The court found this obviously arguable, satisfying the first principle under rule 5(2)(b).
Whether the appeal would be rendered nugatory if stay was not granted
The court held the appeal would be rendered nugatory because reinstating the respondent to a position of trust as cashier, where trust had been lost, could result in loss of money.
Adopting the balance-of-convenience approach in Kenya Revenue Authority v Sidney Keitany Changole, the court reasoned that the respondent was a cashier in a position of trust; trust had been lost and any loss of money pending the appeal would render the intended appeal nugatory. The court also noted employers who demonstrate risk from employees in positions of trust have been granted stay even after compliance with reinstatement orders.
The effect of partial or technical compliance with a reinstatement order on a stay application
The court held this was not an ordinary situation of staying an interim order; where the employer has technically reinstated (paying salary but not assigning duties), the strict rule 5(2)(b) principles apply rather than the negative-order doctrine.
The court reviewed its past decisions distinguishing negative orders incapable of execution (Executive Estates) from reinstatement cases (Co-operative Bank v BIFU; KRA v Changole) where courts applied the two principles notwithstanding compliance. It held that compliance with reinstatement does not extinguish the jurisdiction, and the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act supports the balance-of-interests approach.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two principles: an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
- The court should first consider the nature of the order intended to be stayed and whether the decree has been satisfied before applying the two principles; negative orders incapable of execution cannot be stayed.
- In employer-employee reinstatement cases, the court confines itself to the strict rule 5(2)(b) principles (arguability and nugatory-ness) and the balance of interests, even where the reinstatement order has been complied with.
Court orders
#- 1.Stay of execution of the judgment of the Employment and Labour Relations Court delivered on 8th May, 2015 pending hearing and final determination of the intended appeal
- 2.The orders apply to the consolidated applications
- 3.Costs of the application shall abide the appeal
- On appeal from
- Employment and Labour Relations Court at Nakuru
- Cause No. 249(C) of 2013
- Jurisdiction invoked
- Rules 5(2)(b), 41 and 47(1) of the Court of Appeal Rules, 2010 and section 17 of the Industrial Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kawino v Population Services International (PSI) (Cause 2563 of 2016) [2025] KEELRC 1436 (KLR)[2025] KEELRC 1436 (KLR)15 May 2025
- Savala & another v Ndanyi (Environment and Land Case Civil Suit 248 of 2021) [2022] KEELC 2536 (KLR)[2022] KEELC 2536 (KLR)5 Jul 2022applied
- Edward Lwangu Mamboleo v Tristar Transport Limited [2021] KEELRC 808 (KLR)[2021] KEELRC 808 (KLR)7 Oct 2021applied
- Harrison Bigiyo Clement v Premier Mills Limited [2018] KEELRC 367 (KLR)[2018] KEELRC 367 (KLR)7 Dec 2018applied
- Hezekia Kipkorir Maritim & 10 others v Philip Kipkoech Tenai & 2 others [2016] KEELC 673 (KLR)[2016] KEELC 673 (KLR)13 Jul 2016applied
Cite this brief
#Cite this brief
Caselaw, "Maasai Mara University v Daniel K. Cheboi", Case Analysis (2015). Civil Application No. NAI 165 of 2015 (UR 133/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/271/eng@2015-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.