University of Nairobi v Wambua & 21 others

5. 6. iii. This court should not entertain the Applicant but should listen to and safeguard the Respondent’s interests having waited for this judgment since 2018 in retirement. iv. This amounts to discrimination in that other retirees have been paid at the rate of 31% of basic salary on departure. The 22nd Respondent also comes in to oppose the application on somewhat similar grounds. These are; i. The application is fatally defective, mischievous and an abuse of the process of court in that the Appellant has not demonstrated the strength and likelihood of the appeal being successful. ii. The appeal before this court has no chances of success. iii. The appeal cannot be rendered nugatory by a money decree being satised where substantial loss is not demonstrated as in this case. iv. The right of appeal ought to be balanced with the right of the decree holder to enjoy the fruits of their judgment. v. Should this court be inclined to allow the appeal, it should order the Applicant to pay half of the decretal amount to the Respondent and deposit the other half in court. The Appellant/Applicant in their written submissions dated 4th February, 2026 submits in support of the application. They seek to rely on the authority of Order 42 Rule 6(2) of the Civil Procedure Rules which provides for the prerequisite of an order for stay of execution as follows; No order for stay of execution shall be made unless; 7. a. The court is satised that substantial loss may result to the applicant..; b. The application has been made without unreasonable delay; and c. Such security as the court orders has been given. This is besides reliance on the authority of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (2014) eKLR where the court on the subject, observed as follows; Before a court grants an order for stay, the Appellant or intending Appellant must satisfy the court that; i. That the Appeal is arguable appeal and not frivolous. ii. That the appeal would be rendered nugatory if the stay orders are not granted. iii. That it would be in the public interest to do so. 8. The Appellant/Applicant moves on to submit in favour of having met these prerequisites for grant of stay of execution and grounds it all with Order 42 Rule 8 which expressly exempts public bodies from the requirement to deposit security. In all, the Applicant’s seeks that the court as a last resort accepts a bank guarantee for half the decretal sum or thereabout as security. 9. The Respondents’ in their written submissions dated 4th February, 2026 reiterate and emphasize their case on balancing the right of appeal against the equal important principle that successful litigants should not be denied or deprived of the fruits of their judgment for no sucient cause. 10. It is their further submission that the Appellant/Applicant’s confession that the university is on its knees nancially and is an indication of their state of aairs and this prompts the need to be wary of the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1999/eng@2026-07-15 2

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risks to the Respondents in the event of an issue of stay of execution without adequate security. This would amount to grave injustice. This also takes into account that in all applications for stay, security for the due performance of the decree is mandatory. The Respondents in the alternative are agreeable to the issue of a bank guarantee for the entire judgment sum of Ksh. 48,060,445.00. This would satiate the interest of the Respondents pending the outcome of the appeal. 11. A balancing act would in the circumstances come out in the case of the Appellant/Applicant. Taking into account the circumstances of the application and in consideration of the provisions of Order 42, Rule 8 that exempts public institutions from a deposit of security, this court accepts the Applicant’s oer of a bank guarantee for half the decretal or judgment sum, whichever is the earlier. I am therefore inclined to allow the application and order as follows; i. That the Appellant/Applicant be and is hereby ordered to, in thirty (30) days issue a bank guarantee for the amount of Ksh.24,030,225.00 as security for the decretal on judgment sum. ii. The Appellant/Applicant is awarded forty-ve (45) days to make, le and serve a Record of Appeal in this cause. iii. Mention on 30th September, 2026 for conrmation of compliances and directions of this court. iv. Each party shall bear their costs of this application. DELIVERED, DATED AND SIGNED THIS 15TH DAY OF JULY 2026. D. K. NJAGI MARETE JUDGE Appearances Mr. Omondi instructed by Mereka & Company Advocates for the Appellant/Applicant. Miss Kimani instructed Nyabena Alfred & Company Advocates for the 22nd Respondent Miss Achila holding brief for Mr. Onenga instructed by OCO Law & Company Advocates for the other Respondents https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1999/eng@2026-07-15 3

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