Hosea Sitienei & another v University of Eldoret & 11 others [2019] KEELRC 2582 (KLR)
The bottom line
#A Kenyan university found in contempt of a court order must pay Ksh.38.9 million now, as courts won't delay judgment enforcement without a real appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents were in contempt of the decree of 9th July, 2019
Contempt established: the decree was served and acknowledged, the 30-day compliance period lapsed, there was no reinstatement of Hosea Sitienei nor payment to Kiprop, and no explanation for non-compliance was offered. Punishment was however deferred pending compliance with the alternative orders.
The court found the decree was extracted, served and acknowledged on 18th July, 2019. The respondents offered no explanation for failure to reinstate or pay within 30 days. Their argument that the two-pronged decree allowed them to choose either reinstatement or payment failed because they demonstrated compliance with neither. Contempt proceedings protect the rule of law, not judicial ego. The respondents cannot rely on a stay application filed elsewhere to avoid liability.
Whether stay of execution should issue pending Supreme Court Petition No. 33 of 2019
Stay refused. The matters before the Court of Appeal and Supreme Court do not relate to this court's judgement; there is no appeal against it and no stay orders from any superior court.
Applying the Aviation & Allied Workers Union principles, the court held the discretion to stay must not prevent an appeal, but here no appeal exists against the judgement of 9th July, 2019. The Supreme Court petition concerns the legality of the University Council, not this judgment. The respondents' offer to deposit security was insufficient without a foundation that an appeal exists likely to be rendered nugatory. A judgment holder must be allowed to enjoy the fruits of judgment.
Whether partial execution of the decree before taxation of costs should be allowed
Allowed. Section 13 of the ELRC Act read with section 94 of the Civil Procedure Act permits execution before taxation where necessary; the respondents' non-compliance for over 30 days constituted good reason.
The court adopted Bamburi Portland Cement requiring leave for execution before taxation, by notice of motion served and heard inter partes. The applicants moved by motion; the lapse by the respondents to reinstate or pay, with dues owing for over 30 days, formed good grounds. Partial execution for the sum of Ksh.38,903,116.60 was granted to preserve the petitioners' dignity and protect them against destitution while costs remained unascertained.
Legal principles established
#- Punishment for contempt safeguards the rule of law, not the personal integrity of the judiciary or the ego of the presiding judge
- Where a decree offers alternative modes of compliance, the judgment debtor cannot be left at large to opt and proceed at will
- Stay of execution cannot be granted where no appeal is pending against the judgment and no stay orders exist from a superior court
- Under section 94 of the Civil Procedure Act, the court has discretion to allow execution of a decree before taxation of costs upon good reasons shown
Court orders
#- 1.The petitioners shall proceed with partial execution of the decree issued on 9th July, 2019 against the 10th respondent in favour of the applicants for the sum of Ksh.38,903,116.60 before taxation of the Party and Party Bill of costs
- 2.The petitioners are awarded costs of the application dated 9th September, 2019
- 3.The respondents' application dated 7th October, 2019 seeking stay of execution is declined
- Jurisdiction invoked
- Article 162(2)(1) of the Constitution, 2010; sections 3, 4, 12(3)(viii), 13 and 29(1) of the Employment and Labour Relations Court Act, 2011; Rule 28(1)(g) and 32(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016; section 5(1) of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hosea Sitienei & another v University of Eldoret & 11 others [2019] KEELRC 2582 (KLR)", Case Analysis (2019). Consolidated Petitions (ruling on Notice of Motion dated 9th September, 2019 and Notice of Motion dated 7th October, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2582/eng@2019-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.