University of Nairobi v Mayaka (Employment and Labour Relations Appeal E167 of 2021) [2025] KEELRC 2013 (KLR)
The bottom line
#The Employment and Labour Relations Court halted enforcement of a Kshs 2.9 million award against the University of Nairobi, but kept the money locked in a joint bank account.
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 determined the appeal and granted a lapsed 30-day stay, is functus officio and can grant a further stay of execution pending appeal to the Court of Appeal
- 2.Whether the Appellant has satisfied the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules (substantial loss, no unreasonable delay, security)
- 3.Whether the Notice of Appeal filed out of time is a valid basis for stay pending the application for enlargement of time
- 4.Whether the Respondent's application for release of the security held in the joint account should be allowed
Key legal issues
#Conditions for stay of execution under Order 42 Rule 6(2)
Stay was granted on the basis of the existing security in court and the pending enlargement of time application; the court did not traverse each condition in detail
The court noted the decretal sum had been deposited in a joint interest-earning account pursuant to a prior order of Mwaure J, satisfying the security requirement, and that an application for enlargement of time dated 3rd December 2024 was pending before the Court of Appeal. On that combined basis it found it just to preserve the status quo pending that application, while refusing release of the funds.
Functus officio objection
The court implicitly rejected the functus officio objection by exercising jurisdiction to grant further stay; the objection was addressed in the Appellant's pleadings but not adopted by the court
The Respondent argued the court had fully determined the appeal, granted a lapsed 30-day stay and could not extend jurisdiction for further stay, which should be sought in the Court of Appeal under Rule 21(2) of the ELRC Procedure Rules. The court nonetheless proceeded to consider the merits of the stay application and granted conditional stay, effectively declining to treat itself as functus officio.
Legal principles established
#- Where security has already been deposited and an application for enlargement of time to appeal is pending, the court may grant stay of execution pending determination of that application
Court orders
#- 1.Stay of execution of the judgment of the Employment and Labour Relations Court granted pending determination of the Appellant's application for enlargement of time to file the appeal before the Court of Appeal
- 2.The prayer to release the security deposited in the joint account at SBM Bank is denied
- 3.Costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- null
- null
- Jurisdiction invoked
- Inherent jurisdiction of the Employment and Labour Relations Court to order stay of execution upon such terms as it deems fit, invoked by the Appellant under Order 42 Rule 6(2) of the Civil Procedure Rules and the court's own proceedings in the appeal
Relief refused
#Release of the decretal sum/security held in the joint SBM Bank account to the Respondent (Kshs. 2,929,177.09 plus interest)
Given the pending application for enlargement of time to file the appeal, the court directed that the security continue to be held
Costs
Costs in the 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.
Based on the fact that there is already security deposited in court to satisfy the decretal sum and on the ground that the applications have a pending application before the court to allow them prosecute their appeal, I will allow stay orders sought pending determination of the application for enlargement of time to file the appeal before the Court of Appeal.
The prayers to release the security deposited in court is denied. Costs in the appeal.
No order for stay of execution shall be made under subrule (1) unless the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
an applicant need not show a multiplicity of arguable points, as one arguable point would suffice. Neither is the applicant required to show that the arguable point would succeed
Issues in the judgment
#Internal inconsistency in dates: the judgment describes the appeal judgment as dated 25th October 2024 but later refers to 'the judgment dated 25/10/21' and a ruling 'dated 7/2/22' which appears out of chronological sequence
Judge name inconsistently rendered ('Hon. Lady Justice Anna Mwaure', 'Judge Mwaure', 'J. Mwaure') within the judgment's recital of prior proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "University of Nairobi v Mayaka (Employment and Labour Relations Appeal E167 of 2021) [2025] KEELRC 2013 (KLR)", Case Analysis (2025). ELRC Appeal (COACAPPL No. E678 of 2024 related); Notice of Motion dated 18th February 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2013/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.