Teachers Service Commission v Ezekiel Muchesi [2019] KECA 462 (KLR)
The bottom line
#Kenya's Court of Appeal paused execution of a Ksh. 1.14M employment award against the Teachers Service Commission, but only after it deposited Ksh. 500,000 as security.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable and not frivolous
- 2.Whether, if stay is not granted, the appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
Yes. The applicant raised arguable points, including whether dismissal founded on allegations that were the subject of a terminated criminal case was fair, whether the Judge conflated criminal proceedings with disciplinary proceedings, and whether the award was justified.
The court examined the draft memorandum and submissions. It found that the questions whether the Judge wrongly juxtaposed criminal proceedings with disciplinary proceedings between employer and employee, and whether the award of unpaid salary during interdiction and damages was justified, merited full consideration. Arguability does not require prospects of success, only that the issues merit argument.
Whether the appeal would be rendered nugatory if stay is not granted
Yes. It is more probable than not that the applicant would be unable to recover the decretal sum if paid out, as the respondent is no longer in its employment and his ability to repay is unknown; the respondent also filed no replying affidavit.
The applicant is a constitutional body under Article 237 with perpetual succession capable of satisfying the decree, but the recovery risk lay with the respondent's unknown financial position after leaving service. The court balanced this against the respondent's entitlement to security and expedition, concluding that conditional stay with a deposit best served both parties.
Legal principles established
#- Under Rule 5(2)(b), an applicant for stay of execution pending appeal must establish both that the appeal is arguable and that the appeal will be rendered nugatory unless stay is granted.
- An arguable appeal is not one that must necessarily succeed, but one that merits being argued fully before the Court.
Court orders
#- 1.Stay of execution of the judgment of 4th October 2018 granted on condition that the applicant deposits Ksh. 500,000 in an interest-earning account in a reputable bank in the names of joint advocates within sixty (60) days
- 2.Applicant to file the appeal within ninety (90) days from the date of the order, failing which the stay lapses
- 3.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment & Labour Relations Court at Nairobi
- Cause No 1001 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Unconditional stay of execution without security
Stay granted only on condition of a deposit as security, to assure the respondent that the appeal will be prosecuted expeditiously and to protect him if the appeal fails or partially succeeds
Costs
Costs of this application shall abide the outcome of the intended appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
for an applicant to succeed on an application for stay of execution under Rule 5 (2) (b) of this Court Rules, he or she must satisfy us: i) That the appeal is arguable and not frivolous and ii) That if the stay order sought is not granted the appeal will be rendered nugatory.
We also need to throw a caution that an arguable appeal is not one that must necessarily succeed but one which merits to be argued fully before Court.
the order that best commends itself to us is to grant stay of execution on condition that the applicant do deposit a sum of Ksh. 500,000 in an interest earning account in a reputable bank in the names of joint advocates within sixty (60) days.
The applicant is also ordered to file an appeal within ninety (90) days from the date of this order and in default the order of stay will lapse.
Issues in the judgment
#The supporting affidavit is described as sworn on 10th April, 2018, the same date as the notice of motion dated 10th April, 2019 - an apparent typographical error in the date of the affidavit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Ezekiel Muchesi [2019] KECA 462 (KLR)", Case Analysis (2019). Civil Application No 138 of 2019 (UR 29/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/462/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.