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ELRCDismissedNairobi ELRC No 570 of 2019 (application)· [2023] KEELRC 1682 (KLR)

Mutiso v Teachers Service Commission (Cause 570 of 2019) [2023] KEELRC 1682 (KLR)

Employment and Labour Relations Court
12 July 2023
2,554 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to pause a teacher's award because the Teachers Service Commission offered no security despite being able to.

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 on the Teachers Service Commission's Notice of Motion dated March 22, 2023 seeking stay of execution of the judgment and decree delivered by Gakeri J on March 13, 2023 in Nairobi ELRC No 570 of 2019 (approximately Kshs 2,517,845/=) pending an intended appeal. The applicant contended the appeal raised weighty issues of law, that it would suffer irreparable loss as the decretal sum comprised public funds the claimant could not refund, and that as a government organ it was exempt from depositing security under Order 42 Rule 8. The claimant/respondent opposed the application as an abuse of process, asserting capacity to refund and relying on authorities requiring security even from the TSC. The court framed a single issue: whether the application was merited under Order 42 Rule 6(2). It found substantial loss demonstrated and the application filed without unreasonable delay. However, on security for due performance of the decree, the applicant offered none and relied exclusively on the Government exemption. The court held that perpetual succession as a government organ does not translate into ability to satisfy court awards, noting Court of Appeal decisions requiring security from the TSC, and dismissed the application with no orders as to costs.

Key legal issues

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01

Whether the applicant demonstrated substantial loss

Holding

The court found the applicant had demonstrated substantial loss

Reasoning

The applicant asserted the decretal sum of approximately Kshs 2,517,845/= comprised public funds and the Claimant had no capacity to repay. The respondent deposed he had capacity but tendered no supportive evidence. On the averments and evidence, the court was satisfied the applicant stood to suffer substantial loss if the appeal succeeded.

p. 5
02

Whether the application was made without unreasonable delay

Holding

The application, filed within 10 days of the judgment, was made with reasonable dispatch

Reasoning

The judgment was delivered on March 13, 2023 and the application filed on March 23, 2023. The court found this constituted reasonable dispatch and satisfied the delay limb of Order 42 Rule 6(2).

p. 5
03

Whether the applicant satisfied the security for due performance of the decree requirement

Holding

The applicant failed this limb; it neither offered nor demonstrated willingness to provide security, relying solely on the Government exemption, and the application was dismissed

Reasoning

Although the TSC is an independent commission under Article 237(1), a body corporate with financial and administrative independence, the court held that perpetual succession does not translate into ability to satisfy awards. Authorities cited by the respondent showed courts have required security even from the TSC. The exemption under Order 42 Rule 8 does not relieve an applicant of the duty to offer security; failure to do so defeated the application.

p. 6

Legal principles established

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  • A party seeking stay of execution must demonstrate its readiness or offer to provide security; reliance on the Government exemption under Order 42 Rule 8 alone, without offering security, justifies dismissal
  • Perpetual succession as a government organ does not of itself translate to ability to satisfy court awards

Court orders

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  1. 1.The Notice of Motion dated March 22, 2023 seeking stay of execution is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 164(3)
  • Constitution of Kenya, 2010Article 237(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment and Labour Relations Court ActSection 17
  • Teachers Service Commission ActSection 3(1)(b)
  • Government Proceedings Act
  • Civil Procedure ActSection 1B
  • Civil Procedure Rules, 2010Order 42 Rule 6(1), 6(2), 8
  • Civil Procedure Rules, 2010Order 21 Rule 1

Cases cited (13)

  • African Safari Club Ltd v Safe Rentals Ltd
    [2010] eKLR
  • Kenya Medical Lab Technicians & Technologists Board v Prime Communications Ltd
    [2014]
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike and another
    [2006] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Kenya Shell Ltd v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • Pan African Insurance Co Ltd v International Air Transport Association
    HCCC No 86 of 2006
  • RWW v EKW
    [2019] eKLR
  • Congress Rental South Africa v Kenyatta International Convention Centre Cooperative Bank of Kenya Ltd & another (Garnishee)
    [2019] eKLR
  • Teachers Service Commission v Ezekiel Muchesi
    [2019] eKLR
  • Teachers Service Commission v Ashford Tours and Travel Ltd
    [2021] eKLR
  • Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co Advocates
  • Focin Motorcycle Co Ltd v Ann Wambui Wangui & another
    [2018] eKLR
  • Godfrey K Rukorito v Teachers Service Commission
    [2020]
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending intended appeal)

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, "Mutiso v Teachers Service Commission (Cause 570 of 2019) [2023] KEELRC 1682 (KLR)", Case Analysis (2023). Nairobi ELRC No 570 of 2019 (application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1682/eng@2023-07-12

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