https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1447

Mutongu v St Paul’S University (Petition E081 of 2023) [2026] KEELRC 1447 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1447 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E081 of 2023 JW Keli, J May 22, 2026 Between Rev Dr Zablon Bundi Mutongu Petitioner and St Paul’S University Respondent Ruling 1.The Petitioner/Applicant vide Notice of Motion application dated 4th February 2026 brought under the provisions of Rules 17 and 33 of the Employment and Labour Relations Court (Procedure) Rules, sought the following orders:-a.Spentb.That pending the hearing and determination of this Application inter-partes, this Honourable Court be pleased to review, set aside and/or vary the conditional Stay Orders issued by Hon. Mr. Justice Mathews Nduma Nderi on 26th of November, 2025.c.The costs of this Application be provided for. 2.The Application was supported by the affidavit sworn by the Petitioner on 4th February 2026. 3.Grounds of the applicationa.The Honourable Court entered Judgement on 31st October, 2024, in favour of the Petitioner/Applicant against the Respondent for the sum of Kshs. 9,214,478/- together with costs and interest.b.The Respondent filed an application for stay of execution on 4th April 2025, and the same was allowed by the Honourable Court on 25th September 2025 on condition that the Respondent provides, as security for performance, a Bank guarantee for the Judgement sum within 30 days failure to which the said Order would lapse and execution would be effected.c.The Respondent fatally failed to comply with the Court Orders issued on 25th September 2025 within the timelines given by the Court which action left the Petitioner/Applicant with no choice than to proceed with execution.d.The Respondent further filed an Application dated 24th November 2025 seeking to extend the time within which they were to comply with the Conditional Stay Orders issued on 25th of September 2025 as well as an Interim Order staying warrants of attachment and sale issued on 12th November 2025.e.The Honourable Court allowed the above stated application vide an Order dated 26th November 2025 on condition that the Bank Guarantee would be in place and Auctioneers charges duly paid.f.The Respondents have since defied Court Orders issued on 26th November 2025 as they are yet to provide the Bank Guarantee for the Decretal sum nor pay the Auctioneers therein Response to the application 4.The application was opposed by the Respondent through their Replying Affidavit sworn by Dr. Esther Mombo on 23rd February 2026, where they argued that:a.The Respondent denies that it has failed to comply with the Court's orders, and accuses the Petitioner of misrepresenting the material facts of this case.b.They state that on 25th September 2025, this Honourable Court delivered a ruling granting the Respondent conditional stay of execution orders of the judgment delivered on 31st October2024, pending the hearing and determination of COACA No. E210 of 2025 St. Paul University vs. Rev. Dr. Zablon Bundi Mutongu, currently pending hearing and determination before the Court of Appeal. The said conditional stay of execution orders required the Respondent to provide a Bank Guarantee within thirty (30) days of the Ruling for the due performance of the decree amount, failure to which the Petitioner was at liberty to execute.c.he Respondent successfully obtained the Bank Guarantee from National Bank of Kenya on 29th October 2025, but by that date, the thirty (30) day period set by the Court had lapsed. Once it received the Bank Guarantee, the Respondent through its Advocates on record immediately through a letter dated 30th October 2025 wrote to the Petitioner's advocates forwarding the same.d.Despite the Respondent's good faith communication, on 12th November 2025,the Petitioner, through his auctioneers M/s Jewel Auctioneers, extracted warrants of attachment and on 13th November 2025, the auctioneers visited the Respondent's premises and proclaimed the Respondent’s valuable moveable property including vehicles, computers and essential office furniture.e.On 24th November 2025, the Respondent filed a Notice of Motion Application seeking extension of the conditional stay of execution orders issued on 25th September 2025 on the basis that the Bank Guarantee had already been issued.f.On 26th November 2025, the Honourable Court considered the application, including the Bank Guarantee already on record and the fact that the Respondent had settled the auctioneers' fees, and exercised its discretion by extending the stay of execution orders.g.On 24th November 2025, the Respondent had duly settled the auctioneer's fees in the sum of Kshs. 298,559 paid to one Winrose Ndunda, a representative of M/s. Jewel Auctioneers through three payments of Kshs. 100,000/-, 180,000/- and 18,559/-, made on 24th November 2025 and 25th November 2025 through Mpesa.h.On 26th November 2025, this Honourable Court found that the Bank Guarantee was in place and that the auctioneers' fees had been duly settled and accordingly ordered that the stay of execution do remain in force. In arriving at its decision, the Court considered the evidence on record and heard both parties. The Petitioner's advocates were present in Court and did not dispute receipt of the Bank Guarantee or payment of the auctioneers' fees.i.The Respondent states that the present Application is an attempt to mislead this Honourable Court and is brought in bad faith, the issues raised therein having already been canvassed before the Court and determined on 26th November 2025.j.Any review of the Court's orders ought to have been brought timeously within 14 days and the filing of the present Application nearly two (2) months after the issuance of the orders amounts to inordinate and unexplained delay. In any event, the Petitioner has not placed before this Honourable Court any material evidence to warrant the setting aside and/or review of its orders. The Bank Guarantee forms part of the Court record and was shared with the Petitioner's advocates on 30th October 2025, and the auctioneers' fees were duly paid as acknowledged by the Court. The Court was satisfied with this compliance when it exercised its discretion on 26th November 2025. Decision 5.The application is for review of the court order issued on 26th September 2025, granting the Respondent a stay of execution, conditional upon the provision by the Respondent of a Bank Guarantee for the decretal sum within 30 days of the order. 6.The parties herein have taken conflicting position with the Petitioner/Applicant stating that the Bank Guarantee was not provided within the set timelines; while the Respondent insists that they procured the bank guarantee on 29th October 2025 and did indeed pay the auctioneers fees, facts which were considered and acknowledged by the Court when it extended the timelines for complying with the conditions of the stay order, vide a ruling and order of 26th November 2025. 7.I have perused the court record, and indeed note that vide a Ruling delivered on 25th September 2025, the Court held thus:-“Upon considering the depositions and submissions by the parties the court allows this application and grants the following orders:a.The court grants stay of execution of the judgment delivered on 31st October 2024 and any resultant decree or consequential orders pending the hearing and determination of the intended appeal on condition that the Applicant provides a bank guarantee for the sum of Kshs. 9,214,478.00 plus interest until the pending appeal is heard and determined as security for the due performance of the decretal sum.b.The said bank guarantee to be provided within 30 days of this order failure to which the order shall lapse and execution to follow.” 8.Reference has been made by both parties to an order of the Court issued on 26th November 2025, which extended the period for compliance with the conditional stay orders. A perusal of the Court record indicates that on 26th November 2025, the Hon. Justice Nduma held as follows in the presence of counsel for both parties:-“Application dated 24/11/25 is spent on the basis of the bank guarantee in place and auctioneers’ charges duly paid. Stay of execution remains in place.” 9.It is instructive to note that the Petitioner/Applicant has not disputed the existence of the Court Order issued on 26th November 2025, reaffirming that the stay of execution orders were to remain in place. I have also seen the bank guarantee dated 29th October 2025, attached by the Respondent to their Replying Affidavit sworn on 23rd February 2026, and marked as exhibit “EM-2”. 10.The Court does indeed possess authority to review its orders as stated in Rule 74 of the Employment and Labour Relations (Procedure Rules) 2024 :-“74. Review(1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—(a)if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;(b)on account of some mistake or error apparent on the face of the record;(c)if the judgment or ruling requires clarification; or(d)for any other sufficient reason.’ Rule 74 (6) –' (6) An order made for a review of a decree or order shall not be subject to further review.’ 11.Applying the Rule 74(6)(above) to the present circumstances, the Court on 26th November 2025, having adjusted the timelines contained in its Order dated 26th September 2025, extended the time for obtaining a bank guarantee and held conclusively that the stay orders remain in place, determined with finality the issue of the Respondent obtaining the bank guarantee outside the timelines previously issued by the Court. The Order is not subject of further review. 12.It is trite that when a Court has already pronounced itself on a matter, it is deemed to have performed all its duties in the case and it becomes functus officio. The Honourable Apex Court, in the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR pronounced itself on the doctrine of functus officio when it stated thus:“We, therefore, have to consider the concept of functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept: ‘The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.” 13.For the foregoing reasons, the Notice of Motion dated 4th February 2026 is hereby dismissed with costs. 14.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 22ND DAY OF MAY 2026.JEMIMAH KELI,JUDGE.In the presence of:Court Assistant: OtienoApplicant : -Mwandale h/b GuserwaRespondent: absent