Odhiambo v University of Nairobi Enterprises & Services Board (Cause E497 of 2021) [2024] KEELRC 1026 (KLR)
The bottom line
#The Employment and Labour Relations Court refused to pause a Kshs. 1.2 million judgment against a University of Nairobi-linked company because the employer delayed, offered no security, and proved no loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant for stay demonstrated substantial loss
The Court found no merit in the allegation that substantial loss would ensue if no stay is granted; the Claimant demonstrated capacity to refund the decretal sum should the appeal succeed
The Court weighed the affidavit evidence: the Claimant disclosed an immovable property, L.R No. 124593, valued at Kshs. 18 million with no encumbrances, which sufficiently covers the decretal sum of approximately Kshs. 1,210,000/-. The Applicant did not displace this demonstration of ability to refund. Payment of strictly accrued terminal dues hardly attracts stay, and the Applicant failed to prove by evidence any actual difficulty or irreparable loss if the sums were paid.
Whether the application was made without unreasonable delay
The Court found the Applicant took a long time to make the stay application, filing it seven months after the Notice of Appeal, and its bona fides were doubtful given it participated in the determination of final dues
The application dated 16th November 2023 followed a Notice of Appeal filed 19th April 2023, with the Applicant in the interim participating in the tabulation of dues culminating in the Ruling of 23rd May 2023. The Court treated the Notice of Appeal as ineffective because the decision was only finalized when the parties reverted with the final dues payable, casting doubt on the Applicant's bona fides.
Whether the Applicant provided security for the due performance of the decree
The Respondent/Applicant made no provision for security as required in law
The Applicant had argued that by virtue of Order 42 rule 8 of the Civil Procedure Rules no security is required from the Government or public entities, relying on authorities such as Teachers Service Commission v Benson Kuria Mwangi. The Court nonetheless found that the Respondent/Applicant made no provision for security as required in law, counting this among the failures justifying refusal of stay.
Legal principles established
#- An applicant for stay of execution pending appeal must satisfy the conditions of substantial loss, absence of unreasonable delay, and provision of security
- The purpose of a stay of execution order pending appeal is to preserve the subject matter in dispute so the appeal, if successful, is not rendered nugatory, while balancing the interests of both parties
Court orders
#- 1.Application by the Respondent/Applicant dismissed
- 2.Costs of the Application awarded to the Claimant/Respondent
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules, 2010 (invoked for stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v University of Nairobi Enterprises & Services Board (Cause E497 of 2021) [2024] KEELRC 1026 (KLR)", Case Analysis (2024). Notice of Motion dated 16th November 2023 in Civil Appeal No. E746 of 2023 (arising from ELRC suit; judgment and decree of 18th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1026/eng@2024-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.