Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNotice of Motion dated 25th April 2024 (in petition Robert Kyalo Kimiti v Teachers Service Commission & Kenneth Maragu)

Kimiti v Teachers Service Commission & another (Petition E068 of 2023) [2024] KEELRC 2059 (KLR)

Employment and Labour Relations Court
26 July 2024
1,193 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Employment Court refused to pause its ruling against the Teachers Service Commission, saying anyone unhappy with a final judgment must appeal, not ask the same judge to reconsider.

What this practically means

#

Executive summary

#
The Teachers Service Commission (applicant) moved the Employment and Labour Relations Court by Notice of Motion dated 25th April 2024 seeking a stay of execution of the judgment and decree delivered by Ongaya J on 8th April 2024, in which the court had declared that the 1st respondent must promulgate regulations under Section 47(1)(a) of the TSC Act, 2012, that the Commission's HR Manual for secretariat staff (2018) was ultra vires that section and null and void to that extent, and that the Commission pay 50% of the petitioner's costs. The judgment had carried a 30-day stay lapsing on or about 8th May 2024. The applicant argued it was aggrieved, had filed a notice of appeal, and would suffer irreparable loss: the nullification of the HR manual would cripple its operations, it lacked budgetary allocation to promulgate regulations within the set period, and it was exempt from depositing security under Order 42 rule 8 by virtue of Section 12 of the TSC Act and Article 260 of the Constitution. The respondent filed a preliminary objection contending the court was functus officio, relying on Telkom Kenya Limited v John Ochanda. The court held the application was properly filed within the 30-day stay period and was not barred, but declined the stay: granting it would amount to the court sitting on appeal on its own ultra vires finding, and the better course was to move the Court of Appeal. The court further found no evidence of financial or other constraints, noting the regulations should have been promulgated from 2012. The application was dismissed with costs for the petitioner.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court, having delivered final judgment and functus officio, retains jurisdiction to grant a stay of execution of its own judgment pending an intended appeal
  2. 2.Whether the applicant demonstrated sufficient grounds, including financial/budgetary constraints, to justify a stay of execution

Key legal issues

#
01

Jurisdiction to stay execution of own judgment

Holding

The court retains jurisdiction to entertain a stay application filed within the 30-day stay period it had granted, but cannot temporarily set aside its own ultra vires finding

Reasoning

The application was filed before the 30-day stay lapsed, so it was properly before the court and functus officio did not bar its hearing. However, granting a stay of the declaration that the HR manual was ultra vires would effectively invite the court to revisit and hold in abeyance its own final finding, which would amount to sitting on appeal on itself. The proper forum for that challenge is the Court of Appeal.

p. 3
02

Financial/budgetary constraint as ground for stay

Holding

The applicant failed to establish, by evidence, that budgetary constraints justified non-compliance with the timelines set in the judgment

Reasoning

The court found no evidentiary support for the claim that the Commission lacked funds or budgetary allocation to promulgate the regulations. Further, the obligation to promulgate regulations under Section 47(1)(a) of the TSC Act arose in 2012, and over ten years of inaction weighed against indulgence. No good reason based on financial or other constraints barred compliance within the judgment's timelines.

p. 3
03

Functus officio preliminary objection

Holding

The preliminary objection on functus officio did not succeed because the stay application was filed within the 30-day stay period the court had itself granted

Reasoning

The court noted that after judgment it had ordered a 30-day stay to enable the respondent to move to the Court of Appeal or take other appropriate action. The application dated 25/26 April 2024 was filed before the lapse of that period on 8 May 2024, and was therefore properly filed. The court did not expressly state the outcome of the preliminary objection but proceeded to determine the application on its merits.

p. 3

Legal principles established

#
  • A court that has rendered a final judgment cannot, on an application for stay, temporarily set aside or hold in abeyance its own findings; the aggrieved party must move the Court of Appeal

Court orders

#
  1. 1.The application is dismissed with costs for the respondent, the petitioner

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution; Sections 34, 75, 78 of the Civil Procedure Act; Order 42 rules 6 & 8 and Order 51 rule 1 of the Civil Procedure Rules; Sections 21(1) and (3) of the Government Proceedings Act

Relief refused

#

Stay of execution of the judgment and decree by Ongaya J delivered on 8th April 2024 pending the intended appeal

Granting a stay would amount to the Court sitting on appeal on its own finding; the applicant failed to demonstrate good reason based on financial or other constraints, and the application does not meet the Order 42 rule 6 requirements

p. 3

Costs

The application is dismissed with costs for the respondent, the petitioner.

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.

In conclusion, the application is hereby dismissed with costs for the respondent, the petitioner.
p. 3Final orders - dismissal of the stay application
It appears to the Court that doing so would amount to sitting on appeal on its finding and the better option would be for the applicant to move the Court of Appeal in that regard.
p. 3Court cannot sit on appeal over its own judgment
there is no established good reason based on financial or other constraints that would bar the respondent to comply within the timelines set in the final orders of the Judgment
p. 3No financial justification for stay

Issues in the judgment

#
minor

The application is inconsistently dated within the judgment - the notice of motion is dated 25th April 2024 but the court's finding refers to it as dated 26.04.2024

minor

The respondent's preliminary objection is dated 3rd May 2024 but its third ground refers to a Notice of Motion dated 25th April, 2025, an apparent typographical error

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kimiti v Teachers Service Commission & another (Petition E068 of 2023) [2024] KEELRC 2059 (KLR)", Case Analysis (2024). Notice of Motion dated 25th April 2024 (in petition Robert Kyalo Kimiti v Teachers Service Commission & Kenneth Maragu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2059/eng@2024-07-26

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