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ELRCPartially AllowedNotice of Motion dated 9th May 2025 in the Appeal against MCELRC No. E420 of 2022

University of Nairobi v Okura (Employment and Labour Relations Appeal E137 of 2025) [2025] KEELRC 2464 (KLR)

Employment and Labour Relations Court
18 September 2025
3,093 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court paused enforcement of a Kshs 926,687 award against the University of Nairobi until its appeal is heard.

What this practically means

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Executive summary

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The University of Nairobi, the applicant, filed a Notice of Motion dated 9th May 2025 under Order 42 Rule 6 of the Civil Procedure Rules seeking stay of execution of the judgment and decree of Hon Aziza Ajwang delivered on 29th April 2025 in MCELRC No. E420 of 2022, Linet Mirehane Okura v University of Nairobi, in which a money decree of Kshs 926,687.05 plus interest and costs was awarded, pending its appeal. The respondent opposed, contending the application was an abuse of process, that no substantial loss was demonstrated, that terminal dues payment is not substantial loss, and that the applicant had offered no security. The court, sitting as the first appellate court, found the application filed within the statutory 30-day period and without undue delay. On substantial loss, applying Century Oil Trading Company Ltd v Kenya Shell, it held that the respondent had not demonstrated her financial ability to refund the decretal sum if the appeal succeeded, creating a real risk of the appeal being rendered nugatory. On security, the court held that a public university funded by Parliament falls under 'Government' for purposes of Order 42 rule 8 and is exempt from depositing security, distinguishing Reuben Ondigu Orodo v University of Nairobi which turned on the Government Proceedings Act. Relying on public-interest principles in Articles 201 and 232(1)(b) of the Constitution, and noting the appeal raised arguable points, the court granted a temporary stay of execution pending the appeal, ordered the appeal fast-tracked, awarded costs of the application in the cause, and directed filing of the record of appeal within 30 days with mention on 16th October 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for stay of execution pending appeal was merited

Key legal issues

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01

Whether the applicant demonstrated substantial loss and filed the application without unreasonable delay

Holding

The application was filed within the statutory 30-day period and without undue delay; substantial loss was established because the respondent did not show ability to refund the decretal sum of Kshs 926,687.05 if the appeal succeeded

Reasoning

The judgment was delivered on 29th April 2025 and the memorandum of appeal and motion were filed on 9th May 2025, within the 30-day statutory timeline. On substantial loss, the court applied the Century Oil test: for money decrees, the financial position of both parties matters, and a real possibility that the respondent could not refund the decretal sum rendered the appeal at risk of being nugatory.

p. 3
02

Whether a public university is exempt from depositing security under Order 42 rule 8 of the Civil Procedure Rules

Holding

The applicant public university qualifies as 'Government' for purposes of Order 42 rule 8 and is exempt from security

Reasoning

The Rules do not define 'government'. The court relied on the constitutional definition of 'public office' and Sections 45 and 47 of the Universities Act, which provide that public universities are funded by Parliament and audited by the Auditor-General. It therefore found the university falls under government for purposes of the exemption, distinguishing Reuben Ondigu Orodo v University of Nairobi, which turned on the Government Proceedings Act.

p. 5
03

Whether public interest favoured a stay

Holding

Public interest under Articles 201 and 232(1)(b) of the Constitution favoured staying payment of public funds pending appeal

Reasoning

Relying on Lemanken Aramat and Ethics & Anti-Corruption Commission v Peter Mangiti, the court held that protecting public coffers pending appeal is in the public interest, particularly where the decree holder had not shown ability to refund the decretal sum and the appeal raised arguable points.

p. 6

Legal principles established

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  • Stay of execution requires substantial loss, no unreasonable delay and security, but no security is required from the Government or a public university whose funds are provided by Parliament
  • A stay may be granted in the public interest where a money decree is payable from public funds and the decree holder has not demonstrated capacity to refund the decretal sum if the appeal succeeds

Court orders

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  1. 1.A temporary order of stay of execution issued against the judgment and decree of Hon Aziza Ajwang dated 29th April 2025 in MCELRC No. E420 of 2022, Linet Mirehane Okura v University of Nairobi, pending the hearing and determination of the appeal
  2. 2.The appeal to be fast-tracked in the interest of justice and not to prejudice the decree holder
  3. 3.Costs of the application in the cause
  4. 4.The applicant to obtain typed proceedings of the lower court and file the record of appeal within 30 days
  5. 5.Mention on 16th October 2025 to confirm status and issue further directions

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court (Trial Court, Hon Aziza Ajwang)
MCELRC No. E420 of 2022
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Rule 73 of the Employment and Labour Relations Court (Procedure) Rules, 2024

Relief refused

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Deposit of security as a condition for stay

The applicant, being a public university funded by the exchequer, was held exempt from security under Order 42 rule 8 of the Civil Procedure Rules

p. 5

Costs

Costs of the application in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, the application is granted. A temporary order of stay of execution is issued against the Judgment and Decree by Hon Aziza Ajwang dated 29th April 2025 in MCELRC No. E420 of 2022, Linet Mirehane Okura v University of Nairobi, pending the hearing and determination of this appeal.
p. 6final orders - stay granted
Costs of the application in the cause.
p. 6costs
The court is to fast-track the appeal in the interest of justice and not to prejudice the decree holder.
p. 6expeditious disposal
The court is persuaded to find that the applicant fits to be under government for the purposes of Order 46 (8) of the Civil Procedure Rules hence exempt from deposit of security of costs.
p. 5security exemption for public university

Issues in the judgment

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minor

The judgment refers inconsistently to the security exemption rule as 'Order 46 Rule (2)b', 'Order 46 (8)' and 'Order 42 Rule 8' within the same passages

minor

The Muthui v Kasivu citation is printed with a corrupted character

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 Okura (Employment and Labour Relations Appeal E137 of 2025) [2025] KEELRC 2464 (KLR)", Case Analysis (2025). Notice of Motion dated 9th May 2025 in the Appeal against MCELRC No. E420 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2464/eng@2025-09-18

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