https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1656

Eshiwani v Kenyatta University (Employment and Labour Relations Cause E1634 of 2018) [2026] KEELRC 1656 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1656 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E1634 of 2018 HS Wasilwa, J June 18, 2026 Between Rachel Eshiwani Claimant and Kenyatta University Respondent Ruling 1.The Respondent/ Applicant filed a Notice of Motion application dated 4th February 2026 seeking orders: -1.That there be a stay of execution of the Judgment delivered on 30th October, 2025 and Decree issued on 4th November, 2025 and all consequential processes thereto, including execution pursuant to the Notice of Execution dated 27th January, 2026 pending the hearing and determination of this Application.2.That there be a stay of execution of the said Judgment and/or Decree pending reconciliation, verification, and tabulation of the Claimant’s alleged terminal dues in accordance with the Judgment.3.That there be a stay of execution pending the Respondent’s internal deliberations and compliance processes relating to the Claimant’s reinstatement, as directed by the Court.4.That the Court be pleased to issue such further or alternative orders as it may deem fit and just in the circumstances.5.That the costs of this Application abide the outcome of the cause. Respondent/Applicant’s Case 2.The Applicant avers that that Judgment was delivered in this cause on 30th October, 2025 and a Decree was duly issued on 4th November, 2025 directing, inter alia, payment of certain sums to the Claimant and addressing the issue of reinstatement. 3.It is the Applicant's case that following delivery of Judgment, a material dispute arose regarding the computation and tabulation of the Claimant's dues, particularly on the applicable period, components payable, and statutory deductions, and that it formally declared this dispute vide its letter to the Claimant's Counsel dated 30th January, 2026. 4.The Applicant contends that notwithstanding the unresolved dispute on computation, the Claimant instructed Hammerricx Consultants Agency Ltd, who issued a 7-day Notice to Execute dated 27th January, 2026 threatening execution, whereupon the Applicant, through its Advocates, formally notified the auctioneer that the execution founded on the Claimant's unilateral computation was irregular, premature, and disputed. 5.It is the Applicant's case that despite such notification, the auctioneer remains adamant on proceeding with execution, notwithstanding non-compliance with Rule 73(1) and Rule 73(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024 as read with Order 22, Rule 6 of the Civil Procedure Rules, which mandatorily require the Registrar to issue an order in execution of a Decree upon formal application by a Decree-Holder. 6.The Applicant states that unless execution is stayed, it risks being compelled to pay amounts that are disputed, unverified, and potentially inconsistent with the Judgment, thereby occasioning substantial and irreparable loss. 7.It further avers that the Judgment touches on reinstatement, which requires internal consultations and operational arrangements to ensure meaningful and lawful compliance. 8.The Applicant asserts that it has not refused to comply with the Judgment and Decree but seeks reasonable time and Court supervision to effect compliance in an orderly, lawful, and accurate manner, and that this application has been made promptly and in good faith immediately upon service of the Notice of Execution. 9.It reiterated its readiness to abide by any conditions the Court may impose, including provision of a Bank guarantee as security, if so directed. Claimant/Respondent’s Case 10.In opposition to the application, the Claimant/Respondent filed a replying affidavit dated 4th March 2026. 11.The Respondent avers that the application lacks merit and ought to be dismissed with costs. 12.It is the Respondent's case that there is material non-disclosure by the Applicant, in that the Applicant was served with the Notice of Entry of Judgment on 27th November, 2025, which Judgment having been delivered in the presence of the its Advocates, yet they remained silent for approximately three months, only reacting upon the auctioneer's arrival. 13.The Respondent contends that on 27th November, 2025, it served the Applicant with the Notice of Entry of Judgment and request to pay, typed and certified copies of the Judgment and Decree, and a warning of intended execution upon non-payment, but the Applicant took no action throughout November and December, 2025. 14.She states that on 26th January, 2026, she instructed her Advocates to engage an auctioneer to execute, the decretal sum having been computed at Kshs. 39,653,830, comprising net salary arrears from May 2016 to December 2026 of Kshs. 29,819,218, CBA payment arrears of Kshs. 3,490,000, and court interest at 16% amounting to Kshs. 6,344,612. 15.The Respondent further states that despite the Applicant, vide a letter dated 4th February, 2026, promising to pay the decretal sum by 12th February, 2026, it failed to do so and even made a false representation of an RTGS transfer, thereafter making only a partial payment of Kshs. 4,000,000 on or about 19th February, 2026, which falls short of the Judgment sum. 16.It is the Respondent's case that the issue of reinstatement is purely an administrative matter requiring no court intervention by way of stay orders, and that any genuine dispute on computation could have been resolved through engagement between the parties without necessitating a stay order. 17.The Respondent avers that the Applicant's computation is erroneous in that it incorrectly applied the half-pay period as running to August 2019, whereas the correct period is June 2016 to August 2018, when the Applicant withheld the Claimant's salary without notice, prompting the filing of the suit in December 2018. 18.It further contends that the Applicant failed to factor in unpaid leave, failed to properly compute CBA disbursements between 2016 and 2024, and ignored court interest pegged at 16%. 19.The Respondent states that the amounts owed include full salary from August 2016 to August 2018, unpaid leave, CBA entitlements, and court interest on costs, all of which ought to be resolved through engagement between the parties' representatives and the auctioneer. 20.The Respondent asserts that the present application is an afterthought tainted with malice, filed after unreasonable delay, and that the Applicant has employed unfair labour practices which this Court ought to bring to an end. Applicant’s Submissions 21.The Applicant submitted on four issues: whether the Applicant has satisfied the threshold for stay of execution; whether execution founded on disputed computation is premature and irregular; whether reinstatement relief would be undermined absent stay; and whether the Claimant’s Replying Affidavit rebuts the Application. 22.On the first issue, the Applicant submitted that the applicable principles for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules require it to demonstrate that substantial loss may result unless stay is granted, that the application was made without unreasonable delay, and that it is willing to furnish security. 23.In support of its submissions on the legal framework, the Applicant relied on Butt v Rent Restriction Tribunal [1982] KLR 417, where the Court held that stay exists to prevent an appeal or process from being rendered nugatory and to prevent injustice, and on Kenya Shell Ltd v Kibiru [1986] KLR 410, where the Court of Appeal held that substantial loss is the cornerstone of stay jurisdiction. It submitted that it satisfies all three limbs. 24.On substantial loss, the Applicant submitted It was the Applicant's submission that the extraordinary variance between the competing figures: the Claimant's computation of Kshs. 39,653,830, the Applicant's computation of Kshs. 12,414,344, and the auctioneer's escalated demand of Kshs. 47,188,057, demonstrates that execution is not founded on a settled decretal figure but on competing arithmetic. It submitted that if execution proceeds on speculative sums, the Applicant risks paying millions beyond the Decree, and that this constitutes textbook substantial loss. 25.On promptness, the Applicant argued that delay is to be computed from the moment a real threat of coercive execution arises and not merely from delivery of Judgment. It submitted that the actionable trigger was the 7-day Notice dated 27th January, 2026, and that the present application was filed immediately thereafter, rendering it prompt in the circumstances. 26.On security, the Applicant submitted that t has expressly offered a Bank Guarantee for the sum it computes as payable. It further submitted that, as corroborated by the Claimant's own response, it has already paid Kshs. 4,000,000 to the Claimant as a show of good faith to enable computation of her total dues, and argued that this is strong evidence of good faith and not obstruction as alleged by the Claimant. 27.On the second issue, the Applicant submitted that a Decree must be executed on a clear, certain, and ascertainable sum and that execution is not a forum for private arithmetic. It argued that the Claimant concedes in her own affidavit that figures remain contentious, including salary periods, half pay versus full pay, leave dues, CBA arrears, interest, and computation dates, and that this concession destroys the basis for immediate execution. 28.The Applicant submitted that where parties cannot agree on figures, the proper course is tabulation, reconciliation, or taxation and settlement under Court supervision, and that it is not lawful to unleash auctioneers first and argue figures later. 29.The Applicant further submitted that the auctioneer's demand rises from Kshs. 39,653,830 to Kshs. 47,188,057 without any lawful justification or breakdown, and that this is precisely why courts supervise execution. It accordingly submitted that the impugned execution over disputed decretal amounts is premature and irregular. 30.On the third issue, the Applicant submitted that the Judgment granted relief touching on reinstatement, and that reinstatement is not a mechanical cash payment but requires administrative placement, payroll restoration, reporting structure, and internal compliance processes. 31.It argued that the Claimant's own characterisation of reinstatement as purely administrative in fact supports the Applicant's position that if it is purely administrative, reasonable time and orderly implementation are necessary. 32.The Applicant further submitted that execution designed only to recover money while disregarding reinstatement selectively rewrites the Judgment, and urged that the Court ought not to permit one limb of its Decree to be weaponised while the other is frustrated. 33.On the final issue, the Applicant submitted that silence does not convert a disputed figure into a lawful decretal sum, and that rights of execution arise from the Decree and not from pressure tactics or elapsed time, especially when interest would cover for the said period. 34.The Applicant argued that the allegations of a fake RTGS transfer are extraneous, unsupported, and irrelevant to the legal issue before the Court, being whether execution should proceed on disputed sums. It further submitted that in any event, part-payment demonstrates willingness to comply. 35.The Applicant submitted that it agrees entirely with the Claimant's assertion that nothing is easier than sitting to agree on figures, and that this is why stay ought to issue. It argued that if reconciliation is easy, there is no prejudice in pausing execution for a short, supervised tabulation exercise. 36.The Applicant submitted that paragraphs 12 to 15 of the Claimant’s Replying Affidavit advance multiple substantive disagreements on half pay periods, salary stoppage dates, unpaid leave, CBA increments, and interest, and that these are not execution matters but computation controversies requiring adjudication and/or reconciliation. It argued that the Claimant's own affidavit therefore supports rather than defeats the present motion. 37.The Applicant submitted that the execution is additionally irregular for non-compliance with Rule 73(1) and Rule 73(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024 as read with Order 22, Rule 6 of the Civil Procedure Rules, which require that execution be processed through proper Court machinery, and that execution outside this mandatory process warrants judicial intervention. 38.The Applicant submitted that as a public university, payment of exaggerated or unverified sums implicates public funds and fiduciary responsibility, and that the Court should insist on accuracy before coercion. It argued that the Claimant will suffer no prejudice from a short stay tied to tabulation, whereas the Applicant faces grave prejudice if execution proceeds first. 39.The Applicant proposed that the Court order a stay of execution whilst parties exchange computations within a reasonable period of sixty days, or alternatively direct a joint reconciliation before the Deputy Registrar, with the Applicant in the meantime issuing a Bank Guarantee for Kshs. 8,414,344 or such sum as the Court may direct. 40.The Applicant submitted, in conclusion, that the application is not a refusal to honour the Judgment but a request that the Decree be executed lawfully, accurately, and proportionately. It argued that execution on figures ranging between Kshs. 12 million, Kshs. 39 million, and Kshs. 47 million cannot be described as orderly justice, and urged the Court to halt the coercive process and restore judicial control. 41.The Applicant accordingly prayed that the application be allowed and that orders issue staying execution forthwith, suspending the auctioneer's notice and all attachment steps, directing reconciliation and tabulation under Court supervision, or granting such further relief as the Court may deem just in the circumstances. 42.I have examined all the averments and submissions of the parties herein. This court delivered a judgment in this cause on 30th October 2025 and granted certain orders including an order of reinstatement of the claimant. This court also granted orders directing the respondents to pay the claimant her withheld ½ salary for September 2018 to 20th February 2019 and also her full salary from 21st February 2019 pursuant to the reinstatement order. 43.After the judgement the claimants have proceeded to apply for execution without extracting any decree. There is no indication that the figures that the claimants want to execute against have been verified as court’s judgment. In this court’s view there needs to be tabulation of these figures, verification of the same and reconciliation under courts supervision to allow the figure adopted addressed as a judgment or decree of the court. 44.From the proceedings on the file the respondent claimants seem to be proceeding without following due procedure. 45.I therefore find the application is merited and I allow part stay of the monetary execution pending the reconciliation, verification and tabulation of the claimant’s dues as per the judgement of the court. This process will be undertaken under court’s supervision with the help of the Deputy Registrar. The rest of the judgment requiring reinstatement would not need such verification and no stay on the same is granted. The costs will be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF JUNE, 2026.HELLEN WASILWAJUDGE