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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 1218 (KLR)

Muikia & 11 others; Kenyatta University (Respondent) (Cause E516 of 2020) [2023] KEELRC 1218 (KLR)

Employment and Labour Relations Court of Kenya
19 May 2023
ANAbuodha J N
3,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court paused collection of a Kshs 41 million judgment against Kenyatta University until its appeal is heard, without requiring the money to be deposited first.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Abuodha J) determined a motion dated December 19, 2022 by Kenyatta University seeking stay of execution of a judgment of Mbaru J delivered on November 30, 2022, which had entered judgment for the Claimants, medical doctors employed by the University, in the sum of Kshs 41,190,000 in arrears of emergency call, extraneous, risk and non-practice allowances, payable within 30 days with costs. The University intended to appeal to the Court of Appeal and argued it would suffer substantial loss, that public funds were at risk, and that the Claimants had not demonstrated capacity to refund. The Claimants opposed, asserting the University had admitted capacity to pay and had received government funds for the dues, and sought a conditional stay requiring deposit of the decretal sum in an interest-earning escrow account. The Court applied Order 42 Rule 6 of the Civil Procedure Rules, guided by Article 159 of the Constitution. It found the application prompt, accepted a likelihood of substantial loss given the size of the decretal sum and the absence of affidavits of means from the Claimants, but held that a deposit-in-escrow condition would unnecessarily tie up the University's resources given the known financial distress of public universities. The Court granted an unconditional stay of execution pending appeal, directing the Respondent to file and serve its record of appeal within 60 days, failing which execution would issue. No costs order was recorded.

Key legal issues

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01

Promptness of the application

Holding

The application filed 19 days after judgment was made without unreasonable delay.

Reasoning

The judgment was delivered on November 30, 2022 and the Motion was filed on December 19, 2022. The Court held this interval could not by any manner of interpretation be construed as an unreasonable delay, satisfying the first limb of Order 42 Rule 6(2)(a).

p. 7
02

Substantial loss

Holding

Likelihood of substantial loss was established given the size of the decretal sum and the Claimants' failure to file affidavits of means.

Reasoning

The Court accepted that the decretal sum of over Kshs 41 million was substantial and that payment had the potential of disrupting the Respondent's operations. The Claimants, despite asserting they earned good salaries, filed no affidavit of means to substantiate their capacity to refund the decretal sum should the appeal succeed. The Court therefore agreed there was a likelihood of substantial loss.

p. 7
03

Security for due performance of the decree

Holding

The Respondent's status as a large, government-funded public university with attachable assets made a deposit-in-escrow condition unnecessary.

Reasoning

The Court took judicial notice that the Respondent is one of the largest and oldest public universities, heavily funded by government, unlikely to close shop, and with sufficient attachable resources. Ordering the decretal sum into an interest-earning account would tie up its finances at a time when public universities were financially distressed. Stay was therefore granted unconditionally, tempered only by a 60-day record-of-appeal requirement.

p. 7

Legal principles established

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  • Executing a valid judgment of a court of law does not amount to substantial loss since a decree, unless stayed or overturned, is a debt and obligatory as against the judgment debtor.
  • The conditions for stay under Order 42 Rule 6 are not exclusive; the discretion is guided by Article 159 of the Constitution.
  • The grant or refusal of stay is a judicial discretion to be exercised judiciously, not capriciously.

Court orders

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  1. 1.Unconditional stay of execution of the judgment delivered on November 30, 2022 pending the hearing and determination of the intended appeal
  2. 2.The Respondent to prepare, file and serve the record of appeal on the Claimants within 60 days of the ruling, in default execution shall issue
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, guided by Article 159(2)(a), (b) and (d) of the Constitution

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, "Muikia & 11 others; Kenyatta University (Respondent) (Cause E516 of 2020) [2023] KEELRC 1218 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1218/eng@2023-05-19

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