Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNairobi CMEL No. 490 of 2018 (Application dated 16th October, 2020)· [2020] KEELRC 100 (KLR)

Teachers Service Commission v Ali Abdullahi Ali [2020] KEELRC 100 (KLR)

Employment and Labour Relations Court
7 December 2020
MNMATHEWS N. NDUMA
1,132 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court paused a teacher's reinstatement and payment order against the Teachers Service Commission until its appeal is decided.

What this practically means

#

Executive summary

#
This is a ruling of the Employment and Labour Relations Court at Nairobi on a Notice of Motion dated 16th October 2020 by the Teachers Service Commission seeking a stay of execution of the judgment of Hon. G. Mmasi in Nairobi CMEL No. 490 of 2018 delivered on 18th September 2020, pending determination of an appeal lodged on 7th October 2020. The judgment below had awarded the claimant compensation and general damages and ordered reinstatement. The applicant, through Mr. Sitima, argued the appeal was arguable, that it would suffer irreparable loss including inability to recover the decretal sum, and that under Section 21 of the Teachers Service Commission Act its proceedings are deemed government proceedings under the Government Proceedings Act, so security was unnecessary. The respondent, through Mr. Ayieko, contended the application was filed after expiry of the 30-day stay, that no irreparable loss was demonstrated, no security offered, and that orders of reinstatement ought not generally be stayed because the claimant would suffer substantial loss not remediable later. The court, per Mathews N. Nduma J, held that the applicant was likely to suffer substantial loss as the claimant might be unable to refund the decretal sum, that reinstatement before the appeal was heard would cause prejudice not remediable if the appeal succeeded, that the application was brought without inordinate delay, and that security was unnecessary for the TSC. The stay was granted and costs were made costs in the cause.

Key legal issues

#
01

Substantial loss as a prerequisite for stay of execution

Holding

Substantial loss was established because compensation, general damages and reinstatement were awarded, and refund of the decretal sum would be difficult if the appeal succeeded

Reasoning

The court found the judgment awarded substantial money and reinstatement. If the claimant were reinstated and later the appeal succeeded, the prejudice could not be remedied; conversely, if the appeal failed, the applicant could pay the decretal sum with interest and reinstate with back pay. Loss was therefore sufficiently demonstrated.

p. 2
02

Security for the decretal sum

Holding

Security was not required because the applicant is the Teachers Service Commission, whose proceedings are deemed government proceedings under the Government Proceedings Act

Reasoning

Counsel for the applicant argued a government institution cannot go broke and it was not prudent to require security. The court accepted that Section 21 of the Teachers Service Commission Act deems proceedings against the Commission to be proceedings under the Government Proceedings Act, in respect of which placement of security is not necessary.

p. 2
03

Delay in filing the application

Holding

The application was brought without inordinate delay

Reasoning

The respondent argued the application was filed after expiry of the 30-day stay and was therefore visited with delay. The court rejected this, finding the application was brought without inordinate delay and had merit.

p. 2

Legal principles established

#
  • An applicant for stay of execution must show the appeal will be rendered nugatory or that substantial loss not remediable later will be suffered; a stay of an order of reinstatement may be granted where reinstatement before determination of the appeal would prejudice the applicant in a manner not remediable later
  • By virtue of Section 21 of the Teachers Service Commission Act, proceedings against the TSC are deemed proceedings under the Government Proceedings Act and security for the decretal sum is unnecessary

Court orders

#
  1. 1.The Judgment and all consequent Orders issued by Hon. G. Mmasi in Nairobi CMEL No. 490 of 2018 on 18th September, 2020 is stayed pending the hearing and determination of the Appeal lodged by the Applicant on 7th October, 2020
  2. 2.Costs be in the Cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Teachers Service Commission ActSection 21
  • Government Proceedings Actnull
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Wasike –vs- KPLC
    EKLR, 2016
  • Co-operative Bank of Kenya –vs- Banking Insurance
    null
On appeal from
Magistrates' Court (Nairobi CMEL No. 490 of 2018)
490 of 2018
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; Section 21 of the Teachers Service Commission Act (Government Proceedings Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Teachers Service Commission v Ali Abdullahi Ali [2020] KEELRC 100 (KLR)", Case Analysis (2020). Nairobi CMEL No. 490 of 2018 (Application dated 16th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/100/eng@2020-12-07

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