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ELRCPartially AllowedRuling on Notice of Motion dated 29.10.2013 in Industrial Court Cause, Kisumu (Judgment of 18.9.2013)· [2014] KEELRC 790 (KLR)

Universities Academic Staff Union v Maseno Universtity [2014] KEELRC 790 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
30 January 2014
HWHellen Wasilwa
1,010 words in judgment
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The bottom line

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Kenya's Industrial Court stopped execution of a Kshs 10.8 million employment award against Maseno University, but only after it deposits the uncontested part within 60 days.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 29.10.2013 in which Maseno University, the respondent in an employment cause but the applicant on the motion, sought stay of execution of the Industrial Court judgment delivered on 18.9.2013 by Hellen Wasilwa J, which ordered payment of Kshs 10,828,250.50 to the grievants/claimants together with costs. The applicant, having filed a Notice of Appeal, argued that it is a public university funded by government, that execution would disrupt its operations and cause irreparable harm, that the decretal sum may not be recoverable if the appeal succeeds, and that the appeal is arguable - particularly challenging an award of Kshs 4,228,418.50 as terminal benefits said to be unknown in law or in the claimants' contracts and not pleaded. Counsel cited Court of Appeal authorities on the twin test of an arguable appeal and nugatory-ness, while the claimants relied on Halan v Thorton & Turpin on the conditions for stay. The claimants contended the appeal raised no arguable issue and was factual. The court found the application was filed within reasonable time and that the applicant raised an arguable legal issue on the claimants' pension as against terminal benefits. It granted stay of execution pending appeal, but on condition that the decretal sum, less the contested terminal benefits portion, be deposited in an interest-earning account in the joint names of counsel for the parties within 60 days, failing which execution to proceed. Costs were ordered to be in the cause.

Key legal issues

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Entitlement to stay of execution pending appeal

Holding

Stay granted, filed within reasonable time and raising a arguable legal issue on pension versus terminal benefits, but conditional on securing part of the decretal sum

Reasoning

The court considered the submissions of both parties against the settled test of arguability and nugatory-ness. It found the applicant came to court within reasonable time and that the dispute over terminal benefits not pleaded or provided for in contracts raised a legal question fit for appeal. To balance the parties' interests, the court conditioned stay on deposit of the uncontested decretal sum, with execution to issue on default and costs in the cause.

p. 2

Legal principles established

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  • An applicant for stay pending appeal must show an arguable appeal and that the appeal will be rendered nugatory if stay is not granted
  • The High Court's discretion to stay execution is fettered by sufficient cause, substantial loss, security and reasonable delay

Court orders

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  1. 1.Stay of execution of the judgment dated 18.9.2013 granted pending appeal
  2. 2.Decretal sum less the contested portion on terminal benefits to be deposited in an interest-earning account in the joint names of counsel for the parties within 60 days
  3. 3.In default of the deposit, execution to proceed
  4. 4.Costs in the cause
Jurisdiction invoked
Articles 159, 162(2) and 164(3) of the Constitution; Sections 12(3)(i) and (viii), 17(1) and (2) of the Industrial Court Act 2011; Rules 16 and 27 of the Industrial Court (Procedure) Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Universities Academic Staff Union v Maseno Universtity [2014] KEELRC 790 (KLR)", Case Analysis (2014). Ruling on Notice of Motion dated 29.10.2013 in Industrial Court Cause, Kisumu (Judgment of 18.9.2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/790/eng@2014-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.