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ELRCDismissedPetition (application dated 22nd February, 2021)· [2021] KEELRC 1414 (KLR)

Obuya Bagaka v Kenya School of Government (Petition 135 of 2016) (Employment and Labour) [2021] KEELRC 1414 (KLR)

Employment and Labour Relations Court
22 April 2021
MMM. Mbaru
2,913 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a former employee's attempt to delay paying Ksh.556,069 rent and vacating his government house, ruling he should have sought review, not a stay.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (M. Mbaru, J) on the petitioner's notice of motion dated 22nd February 2021 seeking stay of execution of the court's judgment of 26th January 2021. That judgment awarded the petitioner 10 months' salary as compensation for unfair termination, Ksh.3 million in damages for breach of constitutional rights and back pay, while also allowing the respondent's cross-petition for rent of Ksh.556,069 and vacant possession of the institutional house occupied by the petitioner within one month. The petitioner sought stay, arguing substantial loss, that he was unemployed and would be rendered homeless before receiving his awards, and invoking Article 43 on housing; the respondent opposed, contending the application was res judicata, that the court was functus officio, and that no appeal or Notice of Appeal had been filed. The court noted the earlier ruling of 21st April 2017 and the Court of Appeal's dismissal of the petitioner's appeal on 5th April 2019. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal, the court held that the judgment's orders were distinct and independent, none conditional; that employment benefits cease with cessation of employment; and that a review, not a stay, was the proper remedy for the petitioner's complaints. The application was dismissed, the petitioner was given 30 days to render vacant possession, and costs were awarded to the respondent.

Key legal issues

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01

Whether stay of execution was warranted

Holding

Application dismissed; stay not granted

Reasoning

The court found that no appeal or Notice of Appeal had been filed, so there was no appeal to secure by way of stay. The judgment's orders were distinct and independent, none conditional on payment of the awards first. The petitioner had remained in the respondent's housing since termination in October 2016. Revisiting the occupation and rent issues would offend res judicata, and a review rather than a stay application was the proper avenue for the grievances raised.

p. 4
02

Whether the application was res judicata

Holding

Revisiting occupation of the housing would be contrary to res judicata

Reasoning

The court had already rendered judgment on rent and surrender of the housing, and prior rulings of 21st April 2017 and the Court of Appeal decision of 5th April 2019 had addressed stay of termination and occupation of the allocated house. Going back on those matters would violate res judicata principles.

p. 4

Legal principles established

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  • In employment and labour relations, work benefits given by an employer cease with cessation of employment and cannot be extended pending a determination by the Court of Appeal
  • Stay of execution under Order 42 Rule 6(2) requires substantial loss, application without undue delay and security for the due performance of the judgment
  • Where a party is dissatisfied with the terms of a judgment in respect of matters already determined, a review application and not an application for stay should have sufficed

Court orders

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  1. 1.Application dated 22nd February 2021 dismissed as without merit
  2. 2.Petitioner given 30 days from the date of the ruling to render vacant possession of the respondent's house he currently occupies
  3. 3.Costs awarded to the respondent
Jurisdiction invoked
Section 12(3) of the Employment and Labour Relations Court Act and Rule 28(1) of the Employment and Labour Relations Court (Procedure) Rules; Order 42 Rule 6(2) of the Civil Procedure Rules

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, "Obuya Bagaka v Kenya School of Government (Petition 135 of 2016)  (Employment and Labour) [2021] KEELRC 1414 (KLR)", Case Analysis (2021). Petition (application dated 22nd February, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1414/eng@2021-04-22

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