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ELRCAllowedNot stated in judgment (appeal against Mombasa MCELRC No. E797 of 2021)· [2025] KEELRC 453 (KLR)

University of Nairobi v Kitumbui (Appeal E198 of 2024) [2025] KEELRC 453 (KLR)

Employment and Labour Relations Court
20 February 2025
MMM. Mbarũ
921 words in judgment
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The bottom line

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Kenya's Employment Court granted an employer a stay of execution on an unfair termination award, but only because it had already deposited the full decretal sum in court.

What this practically means

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Executive summary

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This was an application dated 12 November 2024 under Order 42 Rule 6 of the Civil Procedure Rules, filed by the appellant following the trial court's judgment of 24 September 2024 in Mombasa MCELRC No. E797 of 2021, which awarded the respondent Ksh.300,500 plus interest and costs for unfair termination of employment. The appellant sought orders that the sum already deposited in court be deemed a security deposit and that there be a stay of execution pending the hearing of the appeal. The application was supported by the affidavit of Kenneth Sawe, acting registrar administration, who averred there was an arguable appeal and that irreparable loss would otherwise ensue. The respondent opposed, arguing non-compliance with the 14-day deposit direction of 11 October 2024 and asserting his right to enjoy the fruits of judgment. The appellant, through a supplementary affidavit of Paul Ndungu Kariuki, director of ICT, explained the delay as arising from server and internet connectivity challenges. The court framed three issues: whether stay should issue, whether the deposit should apply as security, and costs. Applying Order 42 Rule 6 conditions and authorities including Desbro (Kenya) Limited and Bashir Godana, the court balanced the right of appeal under Section 17 of the ELRC Act against the respondent's legitimate expectations. The application was allowed with conditional stay: the deposit to serve as security, the Record of Appeal to be filed within 30 days of 24 March 2025 failing which the deposit would be released to the respondent, and costs to abide the appeal.

Key legal issues

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01

Whether a stay of execution pending appeal should be granted

Holding

Stay granted subject to the decretal sum of Ksh.300,500 already deposited in court serving as security.

Reasoning

The court applied Order 42 Rule 6 conditions: the applicant had filed the appeal promptly on 26 September 2024, deposited the decretal sum as directed, and the delay in compliance was explained by internet connectivity challenges. The court balanced the appellant's right of appeal under Section 17 of the ELRC Act against the respondent's legitimate expectation to enjoy the fruits of the judgment, and issued conditional stay orders.

p. 2
02

Whether the deposit in court should apply as security pending appeal

Holding

Yes, the deposit of Ksh.300,500 applies as security for due performance of the judgment.

Reasoning

The appellant had already deposited the decretal sum pursuant to interim conditional stay orders. The court treated that deposit as security protecting the respondent, and attached a compliance condition: failure to file the Record of Appeal within 30 days would cause the deposit to be released to the respondent.

p. 2

Legal principles established

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  • Substantial loss is a qualitative concept referring to any loss, great or small, of real worth or value as distinguished from a nominal loss.
  • Stay of execution is discretionary relief designed so that no party is made worse off by an order of the court.
  • Stay of execution balances the right of appeal against a successful party's legitimate expectation to enjoy the fruits of judgment.

Court orders

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  1. 1.The application dated 12 November 2024 is allowed with an order of stay of execution pending hearing of the appeal
  2. 2.The deposit of Ksh.300,500 in court shall apply as security for the due performance of the judgment
  3. 3.The appellant is to file and serve the Record of Appeal within 30 days of closing on 24 March 2025, taking into account the timelines under the Employment and Labour Relations Court (Procedure) Rules, 2024
  4. 4.Where there is no compliance with (b), orders (a) shall lapse and the deposit be released to the respondent
  5. 5.Costs to abide by the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Employment and Labour Relations Court ActSection 17
  • Employment and Labour Relations Court (Procedure) Rules, 2024Not specified (timelines)

Cases cited (3)

  • Desbro (Kenya) Limited v General Printers Limited; NCBA Bank Kenya PLC & another (Objectors)
    [2021] eKLR
  • Tropical Commodities Suppliers Ltd v International Credit Bank (in Liquidation), Kampala Miscellaneous Application No. 379 of 2003
    null
  • Bashir Godana v Fatuma Godana Tupi
    [2018] eKLR
On appeal from
Employment and Labour Relations Court (trial court, Mombasa)
MCELRC No. E797 of 2021
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Section 17 of the Employment and Labour Relations Court Act (right of 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, "University of Nairobi v Kitumbui (Appeal E198 of 2024) [2025] KEELRC 453 (KLR)", Case Analysis (2025). Not stated in judgment (appeal against Mombasa MCELRC No. E797 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/453/eng@2025-02-20

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