University of Nairobi & 2 others v Universities Academic Staff Union (UASU) & 4 others (Civil Appeal (Application) E771 of 2021) [2022] KECA 3 (KLR)
The bottom line
#Kenya's Court of Appeal halted the University of Nairobi Vice Chancellor's contempt sentencing, ruling that risking jail time justifies pausing proceedings pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The grounds raised in the memorandum of appeal, including that the conservatory order issued by the ELRC concerned a non-existent document, were not frivolous and were arguable.
The Court examined the 15 grounds of appeal, among them that the trial judge issued conservatory orders against 'Vice Chancellor's Proposed Governance Reforms dated July 2021' despite finding that no such document was established to exist, and that the 3rd appellant was found in contempt on the basis of a memo whose implementation had already been effected. It concluded these grounds were not frivolous and ought to be argued fully at the hearing of the appeal.
Nugatory value of the appeal
Because the 3rd appellant faced possible custodial sentencing, denial of stay would render the appeal nugatory, as personal liberty once lost cannot be restored.
The 3rd appellant had been summoned to appear before the ELRC for sentencing following a contempt finding, and the nature of the sentence was unknown. Relying on Philip J. Mainga v Proscovia Vitsengwa & 4 Others, the Court held that even a short custodial sentence would irreversibly deprive him of liberty, making the appeal nugatory if successful, and adopted that position.
Legal principles established
#- On a rule 5(2)(b) application the applicant must demonstrate both that the appeal is arguable and that, unless the orders sought are granted, the appeal if successful will be rendered nugatory.
- An arguable appeal need not be one that must succeed; it suffices that it raises grounds that ought to be argued fully.
- Where an applicant facing sentencing for contempt risks a custodial sentence, stay will ordinarily be granted because deprivation of liberty is irreversible.
Court orders
#- 1.Stay of implementation and enforcement of the ruling and order of the ELRC of 10th December 2021 requiring the 3rd appellant to attend court on 27th January 2022 for sentencing, pending hearing and determination of the appeal
- 2.Stay of further proceedings in ELRC Petition No. E118 of 2021 pending hearing and determination of the appeal
- 3.Costs of the application to be in the appeal
- On appeal from
- Employment and Labour Relations Court
- ELRC Petition No. E118 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Michael Mwangi Gachara v Kenyatta University[2026] KEELRC 2466 (KLR)21 Sept 2026
Cite this brief
#Cite this brief
Caselaw, "University of Nairobi & 2 others v Universities Academic Staff Union (UASU) & 4 others (Civil Appeal (Application) E771 of 2021) [2022] KECA 3 (KLR)", Case Analysis (2022). Civil Application No. E616 of 2021 (Notice of Motion dated 21st December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/3/eng@2022-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.