University of Nairobi v Mangana (Employment and Labour Relations Appeal E145 of 2025) [2025] KEELRC 2768 (KLR)

the Appellant. That execution of the judgment and decree may entail attachment of the Appellant’s assets despite its vital statutory mandate set out under section 3 of University Act. 4. 5. d. That unless the stay order is issued if payment of the substantial decretal sum is made to the Respondent whose means are unknown and the appeal succeeds the said sum shall not be readily recovered from the Respondent which will render the appeal nugatory. e. It will not be prudent and in accord with Article 232(1)(b) of the Constitution to commit substantial public funds by efiecting payment while it is most probable that the Judgment of the trial court may be set aside in entirety and/or greatly varied. In reply the Respondent filed his Replying Afidavit sworn on 16th June,2025 by the Respondent herein who averred that: _ a. The Applicant did not advance any valid reasons justifying a stay of the trial court’s judgment which was rendered regularly and after reviewing the filed documents and correctly applying the provisions in the Employment Act and the Labour Relations Act. b. Apart from allusions of substantial loss the deponent did not demonstrate that substantial loss would be occasioned if stay is not granted, there is no proclamation and or attachment that has been done on the Applicant. c. The judgment and decree is a money decree which is ascertainable or capable of being ascertained and refunded in the unlikely event the Applicant were to succeed on any appeal. d. The application is not brought in good faith as it is tactic by the Appellant to further stretch litigation as nothing has been presented to demonstrate that the Applicant will be prejudiced if orders sought are not granted. e. The Applicant’s application and the appeal lack merit, have no chance of success, are misleading brought in bad faith and ought to be dismissed with costs. f. That the Respondent should not be restricted from enjoying the fruits of his judgment having been the successful party and after waiting for the judgment since 2021 when he was retired. g. In the unlikely event that this court finds merit in the application for stay, the Applicant should be ordered to release half the decretal mount and costs to the Claimant and deposit the other half together with security for costs of the appeal in a joint interest earning account of the advocates on record to safeguard the Respondent’s interest of avoiding further delay once the appeal is finalized. The Application was disposed of by written submissions. Applicant’s Submissions 6. The Applicant through its Advocate CS. Fredrick Collins Omondi filed its written submissions dated 18th June, 2025 and submitted that the Respondent had not illustrated in his Replying Afidavit that he will be in a position to refund the decretal sum in the event this appeal is successful. Counsel relied on the case of Cooperative Bank of Kenya vs Taramusi Francis Ongoki(2019) eKLR on this issue. 7. Counsel further submitted that the Applicant was a public university funded from exchequer and the matter should be heard expeditiously and determined to safeguard public money while relying on the case of Ethics & Anti-corruption vs Peter Mangiti & 17 Others(2016) eKLR. Counsel also relied on Article 232(1) (b) of the Constitution on prudent use of public resources. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2768/eng@2025-10-09 2

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8. Counsel also relied on the case of Teachers Service Commission vs Benson Kuria Mwangi (2020) eKLR to submit that a public institution is not required to deposit security by virtue of Order 42 Rule 8 of the Civil Procedure Rules. Respondent’s Submissions 9. The Respondent through his advocates OCO LAW & Co. Advocates filed his written submissions dated 30th June, 2025 and on the issue of whether the order of stay of execution should be granted submitted that stay pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. That the applicant ought to satisfy the conditions set in the above provision on substantial loss, the application being made without unreasonable delay and security for costs. 10. Counsel relied on the case of James Wangalwa & Another vs Agnes Naliaka Cheseto(2012) eKLR on what amounts to substantial loss. That no substantial loss which was shown to arise once execution proceeds as it should be. That those were monies decreed to an employee having worked for the Applicant for 34 years. 11. Counsel further relied on the case of RWW VS EKW (2019) eKLR on the purpose of stay of execution order pending appeal while calling upon the court to look at the interests of both parties. 12. On the issue of security for costs counsel relied on among another case the case of Absalom Dova vs Tarbo Transporters (2013) eKLR on purpose for security for costs. That the Applicant is a huge institution with the financial muscle to fiex. Their excuse that the Applicant is a government institution hence unable to ofier security for costs should not be the reason to frustrate the Respondent. 13. Counsel further submitted that this being a suit where viva voce evidence was not called there are no loads of proceedings hence the Applicant should in addition to conditions above be given timelines within which to file the record of appeal and canvas the appeal. 14. Counsel submitted that the stay application should be dismissed for not meeting the conditions for such stay. Determination 15. Rule 21 of the Employment and Labour Relations Court (Procedure) Rules 2024 requires the stay application to be filed on the appeal file which the Applicant has complied and declared that the same application has not been made in another court. 16. On the issue of stay orders the grounds upon which this court exercises the discretion to grant a stay of execution are well governed by the Civil Procedure Rules under Order 42 Rule 6 which stipulates as follows: (2) No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2768/eng@2025-10-09 3

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17. In Joseph Odide Walome v David Mbadi Akello [2022] eKLR the court in support of the above provision held as follows; An applicant needs to satisfy the court on the following conditions before they can be granted the stay orders: 18. a. Substantial loss may result to the applicant unless the order is made, b. The application has been made without unreasonable delay, and c. Such security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant. On the issue of substantial loss, this was ably explained by Gikonyo J in the case of James Wangalwa & Anor v Agnes Naliaka Cheseto [2012] eKLR where the learned Judge observed: “ No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process…The applicant must establish other factors which show that the execution will create a state of afiairs that will irreparably afiect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail. 19. The Applicant is seeking stay of execution of the judgment and decree of judgment delivered by Hon. T.M Olando on 17th April,2025 of Kshs 3,195,398.12/=. The same is said to be gratuity for the 34 years the Respondent worked for the Applicant. 20. The Applicant alleged that being a government institution which solely relies on public resources which should be preserved as per Article 232(1)(b) of the Constitution it is a public interest issue that the public funds are at stake hence substantial loss would occur. 21. Whereas the Respondent has not illustrated if he is in a position to refund the decretal amount in the event the appeal is successful this means if the appeal is successful it may be rendered nugatory if this application is not allowed to preserve the decretal sum. 22. This court has looked at the grounds in the memorandum of appeal and it is clear there are triable issues when it comes to the gratuity owed to the Respondent which should be determined in finality more so if the CBA applies retrospectively or not. 23. In the interest of justice having looked at the grounds in the memorandum of appeal this court gives the Applicant a chance to have his appeal first heard and determined. This will avoid rendering the appeal nugatory. 24. On the second limb of approaching the court without unreasonable delay, this court notes that interim stay of 30 days issued on 17th April,2025 lapsed on 16th May,2025 and this application was filed on 19th May,2025 which a reasonable period. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2768/eng@2025-10-09 4

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25. On the issue of security for costs the Applicant stated that being a public institution it should be compelled to deposit the same as per Order 42 Rule 8. The said provision provides as follows: No such security as is mentioned in rules 6 and 7 shall be required from the Government or where the Government has undertaken the defence of the suit or from any public oficer sued in respect of an act alleged to be done by him in his oficial capacity. 26. This court in the case of Teachers Service Commission v Benson Kuria Mwangi [2020] KEELRC 1501 (KLR) held as such that: _ Being a public institution, there is public interest in granting the orders of stay as the decretal sum is payable from public funds. I have considered the grounds of appeal attached as appendix 8 to the application and I am satisfied that the appeal is not frivolous. Being a public institution, the applicant is not required to deposit security by virtue of Order 42 Rule 8 of the Civil Procedure Rules. 27. In this case therefore the Applicant should not be compelled to deposit security for costs since being a public entity the Respondent is assured of payment of the decretal sum if the appeal is not successful. 28. The Applicant has therefore met the conditions for grant of the orders of stay. 29. The application is therefore found with merit and is hereby allowed in the following terms: - 30. a. The Appellant is ordered to file the record of Appeal in the court within 30 days of this order and or be at liberty to apply and show reasonable cause why such appeal has not been filed. b. The matter will be mentioned on 8th December, 2025 to confirm compliance and or further orders. c. Costs shall be in the cause. It is so ordered. DATED AT NAIROBI THIS 9TH DAY OF OCTOBER 2025 DELIVERED VIRTUALLY THIS 9TH DAY OF OCTOBER 2025 ABUODHA NELSON JORUM PRESIDING JUDGE-APPEALS DIVISION https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2768/eng@2025-10-09 5

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