Kimiti v Teachers Service Commission & another (Petition E068 of 2023) [2024] KEELRC 2059 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the applicant demonstrated sufficient grounds, including financial/budgetary constraints, to justify a stay of execution
Key legal issues
#Jurisdiction to stay execution of own judgment
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
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.
Financial/budgetary constraint as ground for stay
The applicant failed to establish, by evidence, that budgetary constraints justified non-compliance with the timelines set in the judgment
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.
Functus officio preliminary objection
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
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.
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.The application is dismissed with costs for the respondent, the petitioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
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.
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.
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
Issues in the judgment
#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
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.