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ELRCDismissedNotice of Motion Application dated 30th September, 2020· [2020] KEELRC 209 (KLR)

Teachers Service Commission v Hellen Khamali & another [2020] KEELRC 209 (KLR)

Employment and Labour Relations Court
11 November 2020
2,143 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that an employee reinstated by court order returns to work immediately because reinstatement orders cannot be paused pending appeal.

What this practically means

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Executive summary

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This was a ruling on the Applicant's Notice of Motion dated 30th September 2020 seeking stay of execution of the Employment and Labour Relations Court's judgment of 17th September 2020, which had ordered reinstatement of the Claimant without loss of salary and benefits, pending an intended appeal to the Court of Appeal. The application was brought under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, supported by an affidavit of Mary Rotich, the Applicant's Director in charge of Field Services. The Claimant opposed the application, arguing it was defective, an abuse of process, that no appeal had been filed, and that the conditions in Order 42 Rule 6 had not been met. Parties disposed of the matter by written submissions. The court, per Wasilwa J, applied Order 42 Rule 6 and its own precedent, holding that reinstatement orders are self-executing and incapable of being stayed, and that no security could be given in place of such orders. The court noted the application had been filed within two weeks of judgment (no unreasonable delay), but observed that no Notice of Appeal had been annexed and no appeal had actually been filed, and no security had been offered. The application was found to be without merit and dismissed, with costs in the Petition. The ruling confirms the principle, adopted from Aggrey Lukarito Wasike and Matilda Tenge Mwachia, drawing on Mwilu JA's dissenting opinion in Co-operative Bank of Kenya v BIFU, that reinstatement orders cannot be stayed pending appeal.

Key legal issues

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01

Whether an order of reinstatement can be stayed pending appeal

Holding

Reinstatement orders are self-executing and incapable of being stayed; no security can be given in their place

Reasoning

The court relied on its prior decisions in Aggrey Lukarito Wasike v Kenya Power and Matilda Tenge Mwachia v Kenya Industrial Estates, which in turn drew on Mwilu JA's dissenting opinion in Co-operative Bank v BIFU on the right to work. Because reinstatement restores the claimant to employment by its own force, no security can substitute for it, defeating the Order 42 Rule 6 condition on security. The stay application therefore failed notwithstanding the absence of delay.

p. 3
02

Whether the conditions for stay under Order 42 Rule 6 were met

Holding

The application was filed without delay (within two weeks), but no security was offered and no appeal had been filed, so the conditions were not satisfied

Reasoning

The court accepted that the application was lodged within two weeks of judgment, satisfying the no-delay limb. However, the Applicant had not annexed a Notice of Appeal, meaning no appeal was on file, and no security for due performance had been proffered. The self-executing character of reinstatement made security impossible in any event. Accordingly, the threshold in Order 42 Rule 6(2) was not met.

p. 3

Legal principles established

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  • Orders of reinstatement are self-executing and are therefore not capable of being stayed
  • Stay requires substantial loss, absence of unreasonable delay, and security for due performance under Order 42 Rule 6

Court orders

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  1. 1.The Notice of Motion Application dated 30th September, 2020 is dismissed
  2. 2.Costs in the Petition

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Constitution of KenyaArticle 2(6)
  • Universal Declaration of Human RightsArticle 23(1)

Cases cited (9)

  • Antoine Ndiaye Vs African Virtual University
    (2015) eKLR
  • Joseph Gitahi Gachau & Another Vs Pioneer Holdings (A) Limited & 2 Others
    (2009) eKLR
  • National Industrial Credit Bank Ltd Vs Aquinas Francis Wasike & Another
    (2006) eKLR
  • Focin Motorcycle Company Limited Vs Annn Wambui Wangui & Another
    (2018) eKLR
  • Republic vs Retirement Benefits Appeals Tribunal Ex-parte Heritage A.I.I Insurance Company Limited Retirement Benefits Scheme
    (2017) eKLR
  • Co-operative Bank of Kenya Limited Vs Banking Insurance & Finance Union (Kenya)
    (2015) eKLR
  • Judicial Service Commission Vs Maxwell Miyawa & 7 Others
    (2018) eKLR
  • Aggrey Lukarito Wasike vs Kenya Power Lighting and Company
    (2016) eKLR
  • Matilda Tenge Mwachia vs Kenya Industrial Estates Limited and Another
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6(1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Teachers Service Commission v Hellen Khamali & another [2020] KEELRC 209 (KLR)", Case Analysis (2020). Notice of Motion Application dated 30th September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/209/eng@2020-11-11

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