Obuya Bagaka v Kenya School of Government (Petition 135 of 2016) (Employment and Labour) [2021] KEELRC 1414 (KLR)
The bottom line
#A Kenyan court dismissed a former employee's attempt to delay paying Ksh.556,069 rent and vacating his government house, ruling he should have sought review, not a stay.
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 petitioner has satisfied the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules
- 2.Whether the application is barred by res judicata given the earlier ruling of 21st April 2017 and the Court of Appeal judgment of 5th April 2019
- 3.Whether the petitioner, having filed no appeal or Notice of Appeal, is entitled to stay of the judgment of 26th January 2021
Key legal issues
#Whether stay of execution was warranted
Application dismissed; stay not granted
The court found that no appeal or Notice of Appeal had been filed, so there was no appeal to secure by way of stay. The judgment's orders were distinct and independent, none conditional on payment of the awards first. The petitioner had remained in the respondent's housing since termination in October 2016. Revisiting the occupation and rent issues would offend res judicata, and a review rather than a stay application was the proper avenue for the grievances raised.
Whether the application was res judicata
Revisiting occupation of the housing would be contrary to res judicata
The court had already rendered judgment on rent and surrender of the housing, and prior rulings of 21st April 2017 and the Court of Appeal decision of 5th April 2019 had addressed stay of termination and occupation of the allocated house. Going back on those matters would violate res judicata principles.
Legal principles established
#- In employment and labour relations, work benefits given by an employer cease with cessation of employment and cannot be extended pending a determination by the Court of Appeal
- Stay of execution under Order 42 Rule 6(2) requires substantial loss, application without undue delay and security for the due performance of the judgment
- Where a party is dissatisfied with the terms of a judgment in respect of matters already determined, a review application and not an application for stay should have sufficed
Court orders
#- 1.Application dated 22nd February 2021 dismissed as without merit
- 2.Petitioner given 30 days from the date of the ruling to render vacant possession of the respondent's house he currently occupies
- 3.Costs awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 12(3) of the Employment and Labour Relations Court Act and Rule 28(1) of the Employment and Labour Relations Court (Procedure) Rules; Order 42 Rule 6(2) of the Civil Procedure Rules
Relief refused
#Stay of execution of the judgment delivered on 26th January 2021 requiring the petitioner to pay Ksh.556,069 and to vacate the respondent's house
No appeal or Notice of Appeal filed; the judgment orders are distinct and independent, not conditional; the court is functus officio and revisiting the matter would offend res judicata; conditions for stay under Order 42 Rule 6(2) not satisfied
Order barring/prohibiting the respondent from repossessing/evicting the petitioner from the house until the respondent settles the amounts awarded
The orders of the judgment are distinct and independent; none is conditional on the respondent first paying the petitioner
Costs
Costs awarded to the respondent.
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.
Accordingly, in the interests of justice application dated 22 nd February, 2021 is found without merit save for the rule of law, the petitioner is given 30 days from the date hereof to render vacant possession of the respondents house he currently occupies. Costs awarded to the respondent.
My reading of these orders is that each is distinct and independent. None is conditional and inter-related.
In employment and labour relations, the work benefits given by an employer cease with cessation of employment.
Where the petitioner was to address the terms of the judgement and to address why he should not be evicted from the house he currently occupies until the respondent has fully settled the amounts awarded to him by the court or as the Court of Appeal will determine a review application and not an application for stay should have sufficed.
Issues in the judgment
#The judgment cites Butt v Rent Restriction Tribunal with inconsistent years/citations ([1982] KLR in submissions, [1979] eKLR in the determination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obuya Bagaka v Kenya School of Government (Petition 135 of 2016) (Employment and Labour) [2021] KEELRC 1414 (KLR)", Case Analysis (2021). Petition (application dated 22nd February, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1414/eng@2021-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.