University of Nairobi v M (Employment and Labour Relations Appeal E071 of 2025) [2025] KEELRC 2031 (KLR)
The bottom line
#A Kenyan court paused a Kshs 2.8 million award against the University of Nairobi, ruling that public universities count as 'Government' and need not deposit security pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss on a money decree
The decree of Kshs 2,813,981.77 plus interest and costs was substantial, and the respondent, though the decree was refundable, did not demonstrate his ability to repay it if the appeal succeeded; this established substantial loss.
The court applied Century Oil Trading Company Ltd v Kenya Shell, holding that where a money decree is to be stayed, the financial position of both parties matters. The respondent was retired and adduced no evidence of assets or bank accounts showing capacity to refund the decretal sum. A real danger that the appeal would be rendered nugatory was therefore established.
Security for due performance - applicability of Order 42 rule 8 to a public university
A public university funded by Parliament and audited under the Public Audit Act qualifies as 'Government' for purposes of Order 42 rule 8, and is exempt from depositing security.
The court examined the definition of 'public office' under the Constitution, section 45 of the Universities Act on funding of public universities from monies provided by Parliament, and section 47 requiring audit by the Auditor-General. It concluded the applicant fits under government for purposes of Order 42 rule 8, distinguishing Reuben Ondigu Orodo v University of Nairobi, which turned on the Government Proceedings Act.
Reasonable delay
The application dated 14th March 2025 was filed without unreasonable delay, the memorandum of appeal having been filed within the statutory 30 days.
The impugned judgment was dated 28th February 2025. The memorandum of appeal dated 11th March 2025 was received in court on even date, within the statutory timeline of 30 days, and the Notice of Motion followed promptly on 14th March 2025. The requirement of no unreasonable delay under Order 42 Rule 6(2)(a) was satisfied.
Public interest in protection of public funds
It was in the public interest to grant stay because the decree was to be settled from public funds, the respondent could not refund it, and the appeal risked being rendered nugatory.
Relying on Ethics & Anti-Corruption Commission v Peter Mangiti and Lemanken Aramat v Harun Meitamei Lempanka, the court weighed Article 201 of the Constitution requiring prudent and responsible use of public funds. Committing substantial public funds while the award would most probably be set aside or varied, per Article 232(1)(b), would not accord with prudent use of public resources.
Legal principles established
#- Where the Civil Procedure Rules are silent on conditions for stay pending appeal in the ELRC, the lacuna is addressed by Order 42 Rule 6(2) of the Civil Procedure Rules
- A public university whose funds are provided by Parliament and whose accounts are audited under the Public Audit Act fits within 'Government' for the purposes of Order 42 rule 8, and is exempt from deposit of security
- Substantial loss may be established where the respondent has not demonstrated ability to refund a substantial money decree if the appeal succeeds
Court orders
#- 1.A temporary order of stay of execution issued against the judgment and decree dated 28th February 2025 in MCELRC No. E360 of 2022, Shianzira Gadi M -Vs- University of Nairobi pending the hearing and determination of the appeal
- 2.The court to fast-track the appeal in the interest of justice and not to prejudice the decree holder
- 3.The applicant directed to obtain proceedings of the lower court and file the record of appeal in 30 days
- 4.Mention on 16th September 2025 to confirm status and issue further directions
- 5.Costs of the application in the cause
- On appeal from
- Employment and Labour Relations Court
- MCELRC No. E360 of 2022
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 and all enabling provisions of the law; Employment and Labour Relations Court (Procedure) Rules 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "University of Nairobi v M (Employment and Labour Relations Appeal E071 of 2025) [2025] KEELRC 2031 (KLR)", Case Analysis (2025). Notice of Motion dated 14th March 2025 (appeal against judgment in MCELRC No. E360 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2031/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.