https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1364

Mathooko v Machakos University (Cause E946 of 2021) [2026] KEELRC 1364 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1364 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E946 of 2021 JW Keli, J May 15, 2026 Between Prof Francis Mathooko Claimant and Machakos University Respondent Ruling 1.The Respondent/the Judgment Debtor in the petition, filed an application by way of Notice of Motion dated 3rd December 2025 brought under the Provisions of Order 42 Rule 6 (1) (2) (4) Civil Procedure Rules 2010, Section 1A, 1B and 3A Civil Procedure Act and all other enabling Provisions of the law for orders:-a.Spentb.That there be a Stay of Execution of the Judgment/Decree herein pending the hearing of the Instant application interparties.c.That there be a Stay of Execution of the Judgment/Decree herein the hearing and Determination of the Intended Appeal.d.That costs of the application be provided for. Grounds of the application 2.The Respondent being dissatisfied with the Judgment delivered on 19th March, 2025 duly filed a Notice of Appeal on 26th March, 2025 which was within the stipulated time. 3.The Instant application has been brought without unreasonable delay for the following reasons: -a)The Judgment delivered on 19th March, 2025 was incapable of immediate execution as the parties were directed to tabulate the amount payable to the Claimant.b)The tabulations by the Claimant were adopted by Court on the 9th July, 2025 but the same was not capable of execution as Party/Party costs had not been taxed.c)Party/Party costs were taxed on 11th November, 2023 and Certificate of Costs issued on 18th November, 2025. The Judgment therefore became capable of execution on 18th November, 2025. 4.The decretal sum herein is substantial in the sum of Kenya Shillings Eighty- Seven million, Five Hundred Two Thousand, Forty-Eight and Forty hundred (Kshs. 87,502,048.40) and if the same is settled, the Claimant may not be able to refund it in the event the Intended Appeal succeeds, thereby causing substantial loss to the Respondent. 5.The Respondent is willing to furnish such security for the performance of the Decree as the Court may direct. 6.That if the Orders sought are not granted, the Claimant will proceed to execute the Decree thereby rendering the Instant Application and Intended Appeal nugatory. 7.The application was supported by the affidavit of Mumbi S Mwihurh, dated 3rd December 2025, who stated the judgment was dated 19th March 2025. In support of the application, Mumbi annexed a copy of the Notice of appeal 26th March 20254(MSM1),a letter on tabulation to the respondent’s advocates(MSM2), a letter of objection to the taxed bill(MSM4) and a demand for payment by the respondent’s advocates (MSM5). 8.Upon service of the Application on the Claimant/Decree Holder, he filed his Replying Affidavit, sworn on the 9th of December, 2025, opposing the instant application on the grounds that the same was lacking in merit and indeed filed as an afterthought. 9.The application was canvassed by way of written submissions. Both parties filed. Determination 10.The issue is whether the application for stay of execution was merited. The respondent’s submissions 11.Whether the Applicant has satisfied the criteria for stay of execution- We invite the Honourable Court to note that the Respondent/Applicant has not executed any of the Orders that were issued by the Honourable Court in the Judgement delivered in favour of the Claimant against the Respondent on 19th of March, 2025 despite the fact that the Order of the Honourable Court as set out in the Judgement was executable and enforceable immediately after the said Judgment. It is not in dispute that the Honourable Court on the 19th of March, 2025 delivered a Judgement in favour of the Claimant/Respondent in the total sum of Kshs.66,352,785/= together with costs and interest. It is not in dispute that the factors to consider in an application such as the one seeking stay of execution is as follows:- (a) That substantial loss may result to the Applicant unless the order is made. [2] (b) The Application has been made without unreasonable delay and (c) Such security as the Court Orders for the due performance of such decree or order as may be ultimately be binding on the Applicant has been given. The power to grant an order for stay of execution is discretionary in nature and we submit that the Honourable Court has power to grant the same if it is satisfied that the Applicant has satisfied the conditions set out above. We submit that the Respondent/Applicant has not given any valid reason and/or proof to warrant for a grant of an order of stay of execution in this matter which indicates that the instant application is misconceived and an after thought intended to punish the Claimant/Respondent economically denying him the fruits of justice hence the application is befitting dismissal with costs. We submit that the Respondent/Applicant has since the Judgment was delivered declined/refused to pay the Claimant/reinstate his monthly basic salary, house allowance and all other allowances as per the Court's Order/directions without any justifiable cause and/or reason whatsoever. The Honourable Court on 19th of March, 2025 delivered Judgement in favour of the Claimant against the Respondent and subsequently directed the Respondent/Applicant to tabulate the Claimant's monthly basic salary and house allowance as well as all other monthly [3] allowances, annual allowances and benefits, monthly professional allowance applicable to Professors of the Respondent University and any amounts that had been deducted from the Claimant's remuneration on account that the same were Basic Salary, House Allowance and other allowances and/or benefits that were paid to him within 30 days from the Judgement which was never done. We submit that the Claimant filed his tabulation of his benefits in line with the Court Orders/directions issued on the 19th of March, 2025 when it became evident that the Respondent/Applicant had failed to file their own tabulation within the given 30 days timelines. The Respondent/Applicant did not ever file a counter tabulation to dispute the Decretal sum and further it has dwelt more on the decretal sum and has totally chosen to ignore Order of the Judgement touching on the unlawfulness and unfairness of its decision and action in varying the claimant's salary and allowances. We further submit that the Respondent/Applicant's decision to file a Notice of Appeal did not exonerate it from tabulating the amount due to the Claimant as ordered by the Honourable Court within 30 days which action amounted to contempt of Court and subsequently denied the Claimant the fruit of his Judgement. The Honourable Court on the 9th of July, 2025 adopted the Claimant's tabulation on the amount due and the Court equally delivered its ruling on the Party and Party Bill of Costs on the 13th of November, 2025. We submit that the Respondent/Applicant has not demonstrated that the Claimant is a man of straw and is unable to pay back the Judgement sum and we urge the Honourable Court to dismiss the Application with costs. We further submit that the Claimant is still in the Respondent/Applicant's employment and therefore no substantial loss is envisaged upon implementation of the Judgement Orders and payment of the Decretal sum should the intended Appeal succeed. We invite the Honourable Court to note that the Respondent/Applicant has not attached a draft Memorandum of Appeal indicating the grounds they wish to challenge the Judgement dated 19th March,2 025 which proves that the instant application is an afterthought and an abuse of the Court process befitting dismissal with costs. The Respondent/Applicant has not offered any security which indicates that the Application is made in bad faith calculated to deny the Claimant/Respondent fruits of justice. We further submit that there is delay in filing the instant application since Judgment was delivered on the 19th of March, 2025 and the instant application is dated 3rd December, 2025 which indicates indolence on the Respondent/Applicant's part. From the foregoing, we urge the Honourable Court dismiss the [5] application with costs. Decision 12.Rule 73 of the Employment and Labour Relations Court Rules of 2024 provides as follows- ‘(2)Rules on execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules.’’ The relevant rule under the Civil Procedure Rules is Order 42 Rule 6 to wit- ‘6. Stay in case of appeal [Order 42, rule 6](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)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(b)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.’’ 13.The court established that there was no inordinate delay in filing the application. The impugned decision was dated 19th March 2025, and the notice of appeal was filed on 26th March 2025. The parties took time on tabulation of the judgment award, and a certificate of taxation of costs is issued on 11th November 2025 while the application was filed on the 4th December 2025. 14.On substantial loss, this being a money decree, the loss is disclosed as the respondent did not demonstrate capacity to repay the money in the event of a successful appeal by filing an affidavit of means. In his replying affidavit, the respondent omitted to address the issue of financial capacity. The mere fact that the applicant is to utilize public funds to pay the decretal sum does not mean there is no risk of substantive loss, as the applicant ought to be a prudent custodian of the said public funds entrusted to it by the taxpayers. 15.On the issue of security, which is a mandatory condition under section 42(6) of the Civil Procedure Rules- The Court held the respondent was exempt from deposit of security under the Government Proceedings Act. The court established that it was not in dispute the applicant was a public body funded by the exchequer. Indeed, even the awarded money would be paid by public monies. The court in the application is concerned about whether the applicant fits under order 46(8) of the Civil Procedure Rules to wit:- ‘8. No security to be required from the Government [Order 42, rule 8]No such security as is mentioned in rules 6 and 7 shall be required from the Government or where the Government has undertaken the defence of the suit or from any public officer sued in respect of an act alleged to be done by him in his official capacity.’’ The act does not define what government is. However public office is defined under the constitution as “public office” means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament; ‘’There is no doubt that the respondent is a public university. Section 45 of the Universities Act provides for funding of the public universities as follows:- ‘45. Funds of a public university(1)The funds of a public university shall comprise of—(a)such sums as may be provided by Parliament;(b)such monies or assets as may accrue to or vest in the public university in the course of the exercise of its powers or the performance of its functions under this Act or under any other written law; and(c)all monies from any other source provided for or donated or lent to the public university.(2)There shall be made to the public university, out of monies provided by Parliament for that purpose, grants towards the expenditure incurred in the exercise of its powers or in performance of its functions under this Act.’’ Section 47 of the same Act provides for audit of the university as follows:- ‘’47. Accounts and audit (1) A public university shall cause to be kept all proper books of records of accounts of the income, expenditure and the assets of the university. (2) Within four months from the end of each financial year, a public university shall submit to the auditor general corporations the accounts of the university together with—(a)a statement of the income and expenditure of the university during the financial year; and(b)a balance sheet of the university on the last day of the year.(3)The accounts of a public university shall be audited and reported upon in accordance with the provisions of the Public Audit Act, 2003 (Cap. 412B)’’The court is persuaded to find that the applicant fits to be under government for the purposes Order 46 (8) of the Civil Procedure Rules hence exempt from deposit of security of costs. 16.The court holds that the application is merited and meets the conditions for the grant of stay of execution under Order 42 rule 6 of the Civil Procedure Rules. The court is furher guided by decision in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal gave guidance on how a Court should exercise discretion in an application for a stay of execution, that: -‘If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.” The application is allowed, the applicant having complied with the provisions of Order 42 Rule 6 of the Civil Procedure Rules and, in order to prevent the appeal, if successful, from being nugatory. Any prejudice to the respondent is covered by the costs awarded in the application. Costs of the application to the respondent. 17.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:C/A OtienoApplicant – absentClaimant/Respondent - Ms Okondo h/b Guserwa