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ELRCDismissedNotice of Motion dated 16th November 2023 in Civil Appeal No. E746 of 2023 (arising from ELRC suit; judgment and decree of 18th April 2023)· [2024] KEELRC 1026 (KLR)

Odhiambo v University of Nairobi Enterprises & Services Board (Cause E497 of 2021) [2024] KEELRC 1026 (KLR)

Employment and Labour Relations Court
15 April 2024
4,728 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Respondent (University of Nairobi Enterprises and Services Limited), the judgment debtor in an employment suit, filed a Notice of Motion dated 16th November 2023 seeking stay of execution of the judgment and decree of 18th April 2023 awarding the Claimant Kshs. 1,210,822.85/-, pending Civil Appeal No. E746 of 2023. It argued it was a State Corporation funded by public funds, that the Claimant was a man of unknown means unable to refund the decretal sum if the appeal succeeded, and that as a public entity it need not furnish security under Order 42 rule 8. The Claimant opposed, arguing the judgment was only finalized upon the Ruling of 23rd May 2023 tabulating the dues, that no notice of appeal was filed against that Ruling so there was no competent appeal to ground stay, that the application was brought after a seven-month inordinate delay, that the Claimant owned unencumbered property valued at Kshs. 18 million sufficient to refund the sum, and that no security had been offered. Applying the three conditions in Order 42 rule 6 of the Civil Procedure Rules, the Court found the application was brought after delay and despite the Applicant's participation in the tabulation of final dues, that the purported notice of appeal was ineffective since the decision was only finalized later, that no security was provided, and that substantial loss was not demonstrated because the Claimant proved capacity to refund. The Court also applied the purpose of stay as preserving the subject matter while not depriving a litigant of the fruits of judgment. The application was dismissed with costs to the Claimant/Respondent.

Key legal issues

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01

Whether the Applicant for stay demonstrated substantial loss

Holding

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

Reasoning

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.

p. 8
02

Whether the application was made without unreasonable delay

Holding

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

Reasoning

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.

p. 8
03

Whether the Applicant provided security for the due performance of the decree

Holding

The Respondent/Applicant made no provision for security as required in law

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Application by the Respondent/Applicant dismissed
  2. 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

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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, "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.