John Kennedy Matete v The Vice Chancellor (Administration) Kenyatta University & another

3. THAT, pending hearing and determination of the Appeal this Honourable Court be pleased to restrain the 1st and 2nd Respondents, their agents, workers, Auctioneers or any person acting on their behalf from proclaiming, levying distress for rent, attaching, evicting or interfering in any manner whatsoever with the Claimant/ Applicant quiet and peaceful enjoyment of his tenancy at UGANDA CRESCENT HOUSE NO. 12. 4. THAT, cost of this Application be provided. 2 The Application is premised on the grounds on its face and the Supporting Affidavit of the Applicant, John Kennedy Matete, sworn on 17th March 2026. Claimant/Applicant’s Case 3 The Applicant avers that on 25th July 2025, this Court (Rutto J.) delivered judgment in ELRC Cause No. E015 of 2024 dismissing his claim. He states that, being dissatisfied with the judgment, he filed a Notice of Appeal and preferred an appeal in COACA No. E964 of 2025. 4 It is the Applicant's case that the appeal has overwhelming chances of success, as demonstrated by the grounds in the Memorandum of Appeal. These include an error of fact and law in the trial court's finding that his contract of employment stood terminated by effluxion of Page 2 of 20

page 2 of 20

time on 15th December 2021, without regard to the fact that the contract was renewed on 1st March 2020. 5 He further avers that he is a person with disabilities, and contends that under Section 2 of the Persons with Disabilities Act, 2003, his retirement age was raised to 70 years. 6 The Applicant states that on 11 th February 2026, the Acting Deputy Vice Chancellor (Administration and Finance) of the 2nd Respondent unilaterally and unfairly deducted Kshs. 380,837 from his gratuity. 7 He avers that the Respondents further issued a notice against him to offset rent arrears, failing which they would proclaim and attach his goods and evict him from House No. 12 Uganda Crescent. 8 He avers that he is apprehensive and highly prejudiced that the Respondents may move adversely and evict him together with his young family despite the pending appeal. He contends that he is exposed to proclamation, attachment and eviction at any time unless the Court intervenes, and urges the Court to grant the orders sought. Respondents’ Case Page 3 of 20

page 3 of 20

9 The Respondents opposed the application through the Replying Affidavit of Prof. Paul Okemo, the Registrar (Administration) of the 2nd Respondent, sworn on 22nd June 2026. He avers that he is duly authorised by the Respondents to swear the affidavit on their behalf and is conversant with the facts from records in his custody and from personal knowledge. 10 The Respondents deny that they unilaterally and unfairly deducted Kshs. 380,837 from the Applicant's gratuity. They aver that the deduction was made pursuant to the Applicant's own request and in settlement of outstanding rent arrears which he does not dispute, as borne out by the express findings of this Court in the very judgment of 25th July 2025 that the Applicant now seeks to stay. 11 The Respondents relied on paragraph 54 of that judgment, where the Court held: "The record bears that through a letter dated 6th November 2021, the Claimant was notified that the sum of Kes. 338,484/= owing to him from the 2nd Respondent would be utilised in settling his rent arrears amounting to Kes. 261,619/= and the balance remitted to him after clearing water and electricity bills. The Claimant has not disputed that he had outstanding rent arrears and that indeed, the same was settled using the sums owing to him." Page 4 of 20

page 4 of 20

12 It is therefore the Respondents’ case that it is false and misleading for the Applicant to depict the application of his gratuity towards rent arrears as unilateral, unfair or abusive, when the Court has conclusively determined, on the Applicant's own unchallenged evidence, that the sums were so applied with his knowledge and consent. 13 They aver that the Applicant deliberately concealed paragraph 54 of the judgment, despite annexing the judgment itself as JK1. They argue that this amounts to material non-disclosure and misrepresentation calculated to mislead the Court into granting interim orders it would not otherwise have granted. 14 It is the Respondents' case that a party seeking equitable relief must come with clean hands and make full and frank disclosure of all material facts, including those unfavorable to him, and that having failed to do so, the Applicant's interim orders ought to be set aside and the Application dismissed. 15 The Respondents further aver that the Applicant has not satisfied the conditions for stay pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules, namely substantial loss, filing without unreasonable delay, and provision of security. Page 5 of 20

page 5 of 20

16 On substantial loss, they aver that the Applicant has not demonstrated what loss, if any, he stands to suffer, the Court having found that the rent arrears are admitted and were lawfully settled from sums due to him. 17 On delay, they state that the judgment was delivered on 25th July 2025, yet the Application was not filed until 17 th March 2026, some eight months later, without any explanation, and that this inordinate delay is fatal to the Application. 18 The Respondents aver that the Applicant's tenancy of House No. 12 Uganda Crescent was governed by a Lease Agreement entered into pursuant to an allocation letter dated 20th January 2020, issued strictly by virtue of and for the duration of his employment. Under Clause 1, the tenancy was for a term of two years from the date of allocation, while under Clause 4(d), the lease was to determine forthwith upon the Applicant ceasing to be an employee, save where the Respondent, in its discretion and upon written request, extended occupation on agreed terms. 19 They contend that the Applicant's employment having been determined effective 15th December 2021, and the Court having found that determination lawful and fair, his continued occupation of the house without payment of Page 6 of 20

page 6 of 20

rent since that date has been without colour of right and in breach of Clause 4(d). 20 The Respondents further aver that the Applicant had previously moved the Rent Restriction Tribunal in Rent Restriction Case No. E1598 of 2023. By a Notice of Motion dated 29th January 2026, he sought reinstatement of previously vacated status quo orders and fresh injunctive relief restraining the 2nd Respondent from levying distress, evicting him, disconnecting utilities or interfering with his occupation pending the determination of Civil Appeal No. E964 of 2025. 21 They contend that these orders are strikingly similar in substance to those now sought; as by a ruling delivered on 9th April 2026, the Tribunal dismissed that application for want of jurisdiction, holding that: "A Rent Restriction Tribunal cannot issue orders whose practical effect is to stay, suspend or interfere with a final judgment of the ELRC or proceedings pending in the Court of Appeal. The power to grant a stay of execution against an ELRC judgment (or pending appeal therefrom) resides exclusively with the ELRC itself or the Court of Appeal, as the case may be..." They add that the Tribunal further found that the status quo orders issued on 18 th June 2024 lapsed upon delivery of this Court's judgment on 25 th July 2025, and that the mere filing of an appeal does not operate as a stay of execution. Page 7 of 20

page 7 of 20

22 The Respondents avers that the Applicant's failure to disclose these parallel proceedings, and his having been refused materially identical relief, is a further material non-disclosure, and that he cannot be permitted to approach this Court afresh, in silence as to that refusal, in the hope of a different outcome. 23 It is the Respondents’ case that from the record of the Tribunal proceedings, the Applicant had as at the date of his application before the Tribunal accumulated rent and utility arrears of Kshs. 534,100. 24 Further, the Applicant has failed to comply with the earlier status quo orders requiring him to pay rent and utilities as they fell due, and that by a letter dated 11 th February 2026 the 2nd Respondent issued him with a Notice to Offset Arrears and a Demand for Immediate Settlement of the outstanding balance. 25 The Respondents therefore contend that the Applicant approaches the Court without clean hands, as a litigant in substantial and admitted arrears, who has already been denied identical relief by a competent tribunal, and who has at no point sought, let alone obtained, a stay from this Court or the Court of Appeal. Page 8 of 20

page 8 of 20

26 The Respondents aver that Cause No. E015 of 2024 was fully and finally determined by the judgment and orders of 25th July 2025, and that there is no live cause before this Court within which orders of stay or injunction may be sought or granted. 27 They aver that the application is, in substance, one for interim injunctive orders against recovery of rent arrears dressed up as an application for stay pending appeal, and that it ought properly to have been placed before the Court of Appeal in Civil Appeal No. E964 of 2025. 28 It is the Respondents' case that this Court, having pronounced final judgment, is functus officio and lacks jurisdiction to grant the orders sought, which fall within the exclusive purview of the Court of Appeal. They urge that the application is bad in law, unmerited and an abuse of the court process, and ought to be dismissed with costs. Claimant/Applicant’s Submissions 29 The Applicant submitted on three issues: whether the Appeal would be rendered nugatory if the restraining orders are not granted to the Applicant; whether the Applicant has met the threshold for grant of a temporary injunction; and who bears the costs. 30 On the first issue, the Applicant relied on Stanley Kangethe Kinyanjui V Tony Ketter & 5 others [2013] eKLR, where the Court of Appeal, having found that the Page 9 of 20

page 9 of 20

grounds raised arguable points, held that: "These factors go to show that if the three respondents are not restrained and further proceedings are not stayed as prayed in the motion, the substratum of the intended appeal will disappear and the appeal will be rendered nugatory." 31 He submitted that, being dissatisfied with the judgment of this Court (Rutto J.) delivered on 25 th July 2025, he has preferred a substantive appeal in Civil Appeal No. E964 of 2025, which he contends has overwhelming chances of success. He argued that the grounds in the Memorandum of Appeal include an error of fact and law in the Court's finding that his contract terminated by effluxion of time on 15th December 2021, without regard to its renewal on 1 st March 2020. 32 The Applicant further submitted that the Respondents issued a notice on 11th February 2026 to offset rent arrears, failing which they would proclaim and seize his property. He maintained that unless the Respondents are temporarily restrained from attaching, selling, auctioning or otherwise interfering with his goods, he will suffer loss and the appeal will be rendered nugatory. 33 On the second issue, the Applicant submitted that the principles governing temporary injunctions are settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358, as restated in Nguruman Limited v Jan Bonde Nielsen & Page 10 of 20

page 10 of 20

2 others [2014] eKLR: "First, an Applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide the application on the balance of convenience." 34 He relied on Order 40 Rule 1 of the Civil Procedure Rules, which empowers the Court to grant a temporary injunction to restrain such act, or make such other order, "for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders." 35 On what constitutes a prima facie case, he relied on Mrao Ltd v First American Bank of Kenya Ltd& 2 others[2003] eKLR, where the Court of Appeal held that a prima facie case "is more than an arguable case and that the evidence must show an infringement of a right, and the probability of success of the applicant's case upon trial. 36 The Applicant submitted that he has demonstrated a prima facie case with a high probability of success on four grounds. First, he has preferred a substantive appeal against the judgment. Second, the trial court failed to note Page 11 of 20

page 11 of 20

the renewal of his contract on 1 st March 2020. Third, as a person with disabilities, his retirement age was raised to 70 years under Section 2 of the Persons with Disabilities Act, 2003. Fourth, the Respondents have issued a notice to offset rent arrears on pain of proclamation and seizure of his property. He argued that these demonstrate that the Respondents' actions are not only irregular but amount to unjust enrichment. 37 On irreparable harm, the Applicant reiterated his status as a person with disabilities, whose retirement age he submits was raised to 70 years. He submitted that the Respondents' notice to offset arrears, issued while his appeal remains active, exposes him to proclamation, attachment and eviction at any time unless the Court intervenes. 38 On substantial loss, he relied on Samvir Trustee Limited v Guardian Bank Limited, Nairobi HCCC No. 795 of 1997, where the court held that every party aggrieved by a decision has a natural and undoubted right to seek the intervention of the Court of Appeal, and that the court must balance the scales of justice: "...by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement." Page 12 of 20

page 12 of 20

39 On the balance of convenience, the Applicant relied on the three-part test in R.J.R. MacDonald v Canada (Attorney General) [1994] 1 SCR 311: whether there is a serious issue to be tried, whether the applicant will suffer irreparable harm if the injunction is refused, and which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits. 40 He further relied on Kipkoech v Bargoria & another [2019] KEELC 3435 (KLR) and Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] eKLR, where the court held that it will determine which party will suffer the greater harm, and that: "If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies." 41 It is the Applicant’s submission that the balance of convenience tilts in his favour because he stands to suffer irreparable harm that cannot be compensated by an award of damages. 42 On costs, the Applicant submitted that costs are in the discretion of the Court under Section 27(1) of the Civil Procedure Act, which provides that costs follow the event unless the court or judge shall for good reason otherwise Page 13 of 20

page 13 of 20

order, and that a successful party may only be denied costs for explicit reasons. He relied on Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR for the meaning of the event as the result of the entire litigation or of separate issues within it. 43 It is the Applicant’s submission that he has satisfied the conditions for injunctive relief pending appeal by demonstrating an arguable appeal with overwhelming chances of success. He urged the Court to restrain the Respondents from proclaiming, attaching, evicting, levying distress or interfering with his possession of House No. 12 Uganda Crescent, with costs in the cause. Respondents’ Submissions 44 On the deduction of Kshs. 380,837, the Respondents submitted that the central premise of the application, that the deduction was unilateral, unfair and an abuse of the court process, is demonstrably false and is contradicted by the very judgment the Applicant seeks to stay. 45 Relying on paragraph 54 of the judgment of 25 th July 2025, they submitted that it is not merely undisputed but judicially determined that the Applicant had outstanding rent arrears, that he was notified that sums due to him would be applied towards those arrears, and that he did not at trial dispute that the sums were so applied. They contended that he who alleges must prove, and that a Page 14 of 20

page 14 of 20

party cannot resile from findings made on his own unchallenged evidence merely because they are now inconvenient to a fresh application. 46 On non-disclosure, the Respondents submitted that a party seeking discretionary, ex parte or interim relief is under a strict duty to make full and frank disclosure of all material facts, including those unfavorable to him, and that failure to do so is by itself sufficient ground to decline or set aside relief. They argued that the Applicant annexed the judgment as JK1 yet omitted any reference to paragraph 54, which conclusively answers his complaint. In their view, this was a deliberate omission calculated to mislead the Court, and a litigant who suppresses the part of a judgment that contradicts his case has not come with clean hands. 47 On the conditions for stay under Order 42 Rule 6(2) of the Civil Procedure Rules, applied mutatis mutandis in this Court, the Respondents submitted that the three cumulative conditions are substantial loss, absence of unreasonable delay, and the provision of security. 48 On substantial loss, they argued that the Applicant has placed no evidence quantifying or describing his loss beyond a bare apprehension of eviction, which falls short of the threshold where the underlying debt is admitted and has been judicially found settled from his dues. Page 15 of 20

page 15 of 20

49 On delay, they submitted that the Application was filed on 17th March 2026, some eight months after the judgment, without any explanation. They reasoned that an applicant who sleeps on his right and moves only when faced with imminent execution cannot complain of urgency of his own making, and that this delay is on its own fatal. 50 On security, they submitted that the Applicant has neither offered nor proposed any security for costs or for the sums admittedly outstanding, which they contended is a mandatory precondition for a stay. Having failed on all three conditions, they urged that the Application is incompetent. 51 The Respondents further submitted that the Applicant had already unsuccessfully sought materially identical relief before the Rent Restriction Tribunal in Rent Restriction Case No. E1598 of 2023. By its ruling of 9th April 2026, the Tribunal held that jurisdiction to stay a judgment of this Court resides exclusively with the ELRC itself or the Court of Appeal, and found that the status quo orders of 18 th June 2024 lapsed upon delivery of the judgment on 25 th July 2025. 52 In support thereof, they cited Butt v Rent Restriction Tribunal [1979] eKLR, where the Court of Appeal held that a stay pending appeal is not automatic and must be specifically sought and granted by a competent court. They also relied on Kenya Shell Limited v Benjamin Page 16 of 20

page 16 of 20

Karuga Kibiru & anorther [1986] eKLR for the proposition that the filing of an appeal does not by itself prevent a successful litigant from enjoying the fruits of his judgment. 53 The Respondents submitted that the Applicant's failure to disclose the Tribunal proceedings and ruling is a further material non-disclosure. A litigant who has been told by a competent forum to approach this Court, and who then does so while concealing that fact, cannot be said to have come with clean hands. Reliance was placed on Kenya Hotels Limited v Kenya Commercial Bank [2004] eKLR for the principle that equitable remedies cannot be granted to a party who is himself in breach of legal obligations and fails to make candid disclosure. 54 They further submitted that the Applicant, having accumulated rent and utility arrears of Kshs. 534,100, having failed to comply with the earlier status quo orders, and having been served with the Notice to Offset Arrears of 11th February 2026, is in substantial default, a matter relevant both to substantial loss and to the equitable character of the relief sought. 55 It is the Respondents’ submission that the Applicant cannot re-litigate through the back door of a stay application an issue on which he failed before a competent Page 17 of 20

page 17 of 20

tribunal, and that permitting him to do so would sanction an abuse of process. 56 On jurisdiction, the Respondents submitted that Cause No. E015 of 2024 was fully and finally determined by the judgment of 25th July 2025, rendering this Court functus officio, with no live cause in which the orders sought can properly be granted. They relied on Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] eKLR, where Nyarangi JA held that jurisdiction is everything and that without it a court has no power to make one more step, and must down its tools. 57 They submitted that the Applicant's own pleadings confirm that Civil Appeal No. E964 of 2025 is the proper and exclusively competent forum for any stay or injunction touching on the subject matter of the appeal. They contended that the Application is in substance one for injunctive relief against recovery of admitted rent arrears, disguised as a stay pending appeal, and that it discloses a pattern of forum shopping across this Court, the Tribunal and this Court again. 58 It is the Respondents’ submission that the application is misconceived, an abuse of the court process, founded on material non-disclosure, inordinately delayed, fails to meet the conditions under Order 42 Rule 6(2), and is brought before a court lacking jurisdiction. They urged the Court to Page 18 of 20

page 18 of 20

dismiss it, discharge any interim orders granted, and award them costs. 59 I have examined all the averments and submissions of the parties herein. The applicant has approached this court seeking stay orders barring the respondents from evicting him from the house he occupies pending appeal. He contends that this is on account of the respondent’s actions of giving him a notice to offset the rent arrears and in default they proclaim and seize his properties. 60 The applicant has averred that he has filed an appeal having been dissatisfied with the judgment of this court (Rutto J). In order to avoid a situation where the appeal if it succeeds shall be rendered nugatory, I will allow the stay orders only on condition that the applicant continues to pay rent in house no 12 Uganda Crescent when due and all rent arrears that have accrued pending the hearing and determination of the appeal. The applicant has 60 days to pay off as expected and in default the stay orders will stand vacated. Costs to abide the outcome of the appeal. Dated, Signed and Delivered virtually at Nairobi this 7th Day of October 2026. HELLEN WASILWA JUDGE Page 19 of 20

page 19 of 20

Page 20 of 20

page 20 of 20