Pithon Mwangi Njoroge v Pithon Mwangi Njoroge [2015] KEELRC 1644 (KLR)

The Court traced its jurisdiction to Articles 41, 162(2) and (3) and section 12(3) of the Employment and Labour Relations Court Act, which permits interim preservation orders and injunctions. The staff loan terms flowed from employment, so jurisdiction was not ousted by the charger/chargee relationship. However, the property matters were never part of the issues pleaded or heard before the 28th May 2015 judgment, and to grant fresh orders would contravene due process and fairness to the respondent.

Applying the conditions in Collins Osoro Lukhale v AAA Growers Ltd and Mukuma v Abuoga, stay requires substantial loss, no unreasonable delay and security. The respondent offered to deposit the decretal sum in a joint account, but an intended appeal, notice and draft memorandum do not amount to a pending appeal before the Court of Appeal. The claimant, unfairly dismissed, holds a valid judgment and should enjoy it notwithstanding his unemployment.

The Court observed that had the claimant not been unfairly terminated he would have continued repaying his staff loan at negotiated staff rates. Applying commercial rates post-termination would reduce an employee to a homeless person, contrary to Article 28 on dignity, and constitutes an unfair labour practice. Nonetheless this principle could not rescue the claimant's post-judgment application, which sought to litigate matters never pleaded.