Teachers Service Commission v Hellen Khamali & another [2020] KEELRC 209 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether an order of reinstatement can be stayed pending appeal
Reinstatement orders are self-executing and incapable of being stayed; no security can be given in their place
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.
Whether the conditions for stay under Order 42 Rule 6 were met
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion Application dated 30th September, 2020 is dismissed
- 2.Costs in the Petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.