Eric Kimani & 2 others v Moi University [2014] KEELRC 360 (KLR)

It was not disputed that the stay application was heard and allowed ex parte without any notice to the claimants. The court held that the right to be heard is the cornerstone of natural justice and that condemning a party unheard is unconstitutional. Absolute and final orders of stay made without service, response or participation of the applicants gravely undermined the validity and legality of the orders, which could not stand.

The court reproduced the requirements of Order 42 rule 6(2) of the Civil Procedure Rules, including security and substantial loss. The decretal sum of about Ksh.48 million touched on the livelihood and economic interests of the claimants. The respondents had liberty to offer security but did not; blanket stay orders were unsustainable in the circumstances.

The claimants submitted, relying on Wangethi Mwangi & Nation Newspapers Ltd v J.P. Machira, that assertions of financial destabilization require evidence. The quoted authority showed that mere repetition of a destabilization theory without accounts or proof fails. The court adopted that reasoning and held the respondent had not demonstrated substantial loss negating an order for security.

The claimants relied on Rule 82(1) of the Court of Appeal Rules that an appeal is instituted by filing a memorandum of appeal, while the respondent relied on Order 42 rule 6(4) deeming an appeal filed on notice. The court found the rules complimentary but held the Notice of Appeal alone did not assist in assessing whether an arguable appeal subsists.

The court identified the omission of computation and orders for a decretal amount as the source of confusion. It agreed that functus officio attaches on delivery and signing of judgment, but held S.99 of the Civil Procedure Act empowers correction of slips either suo moto or on application. Despite finding the slip rule applicable, the judge opted not to apply it.