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ELRCPartially AllowedNotice of Motion dated 14th March 2025 (appeal against judgment in MCELRC No. E360 of 2022)· [2025] KEELRC 2031 (KLR)

University of Nairobi v M (Employment and Labour Relations Appeal E071 of 2025) [2025] KEELRC 2031 (KLR)

Employment and Labour Relations Court
4 July 2025
3,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The University of Nairobi, as appellant, moved the Employment and Labour Relations Court at Machakos by Notice of Motion dated 14th March 2025 under Order 42 Rule 6 of the Civil Procedure Rules seeking stay of execution of the judgment and decree of 28th February 2025 in MCELRC No. E360 of 2022, Shianzira Gadi M v University of Nairobi, in which the respondent was awarded gratuity of Kshs 2,813,981.77 plus interest and costs under the 2013-2017 CBA. The respondent opposed, arguing no substantial loss, no security offered, and that he was entitled to enjoy the fruits of his judgment. The court found the ELRC (Procedure) Rules 2024 silent on conditions for stay and applied Order 42 Rule 6(2) CPR. On substantial loss, following Century Oil Trading Co v Kenya Shell, it held the respondent had not demonstrated capacity to refund the substantial decretal sum if the appeal succeeded, he being retired. On security, the court examined the constitutional definition of public office, sections 45 and 47 of the Universities Act and the Public Audit Act, and held the public university fell under 'Government' for purposes of Order 42 rule 8, exempting it from depositing security, while distinguishing Reuben Ondigu Orodo v University of Nairobi. Guided by the public interest in prudent use of public funds under Articles 201 and 232(1)(b), and persuaded the appeal raised arguable points, the court allowed the application, issued a temporary stay of execution pending the appeal, directed fast-tracking, and ordered the applicant to file the record of appeal in 30 days, with costs in the cause.

Key legal issues

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01

Substantial loss on a money decree

Holding

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.

Reasoning

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.

p. 4
02

Security for due performance - applicability of Order 42 rule 8 to a public university

Holding

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.

Reasoning

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.

p. 5
03

Reasonable delay

Holding

The application dated 14th March 2025 was filed without unreasonable delay, the memorandum of appeal having been filed within the statutory 30 days.

Reasoning

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.

p. 3
04

Public interest in protection of public funds

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.The court to fast-track the appeal in the interest of justice and not to prejudice the decree holder
  3. 3.The applicant directed to obtain proceedings of the lower court and file the record of appeal in 30 days
  4. 4.Mention on 16th September 2025 to confirm status and issue further directions
  5. 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

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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, "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.