https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1492

Republic v Kenya Universities Staff Union; Osogo & another (Ex parte Applicants) (Judicial Review E040 of 2023) [2026] KEELRC 1492 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1492 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review E040 of 2023 JW Keli, J May 22, 2026 Between Republic Applicant and Kenya Universities Staff Union Respondent and Aggrey Keya Osogo Ex parte Applicant Joseck Olukusi Alwala Ex parte Applicant Ruling 1.The Respondent/Applicant vide Notice of Motion application dated 13th January 2026 brought under the provisions of Order 10 Rule 11; Order 22 Rule 22; Order 51 Rule 1 of the Civil Procedure Rules; and Sections 1A, 1B & 3A of the Civil Procedure Act, sought the following orders:-a.Spentb.That this Honourable Court be pleased to stay execution of the Judgment, Decree and Orders of the Employment and Labour Relations Court at Nairobi of Hon. Justice Mathews Nduma delivered on 18th December 2023 pending the hearing and determination of this Application.c.That costs of this application be in the cause. 2.Grounds of the applicationa.The Applicant is aggrieved by the whole of the Judgment and Orders of the Court delivered on 18th December 2025 and has duly lodged a Notice of Appeal signifying its intention to appeal.b.The intended appeal is arguable and raises bona fide points of law, including: i. The proper scope and limits of judicial review; ii. The autonomy of trade unions in disciplining their members and officials; iii. Interpretation and application of the Applicant's Constitution; and iv. The doctrine of exhaustion of internal dispute resolution mechanisms.c.The learned Judge granted final and mandatory orders of certiorari and mandamus compelling the immediate reinstatement of the Respondents as union members and officials, thereby fundamentally interfering with the Applicant's governance and disciplinary structures.d.Unless stay of execution is granted, the Respondents will assume office and participate in union governance, which will occasion institutional confusion, administrative disruption, and loss of disciplinary control within the Applicant Union.e.The appeal, if successful, will be rendered nugatory, as reinstatement into union leadership positions is not easily reversible and damages would not be an adequate remedy.f.It is in the interests of justice and fairness that the status quo ante prevailing prior to the impugned Judgment be preserved pending the hearing and determination of the intended appeal. 3.The Application was further supported by the affidavit sworn by Dr. Charles Mukhwaya on 13th January 2026. Response to the application 4.The application was opposed by the Ex-Parte Applicants/Respondents through their Replying Affidavit sworn by Joseck Olukusi Alwala on 16th February 2025 (sic), where they argued that:-a.The Application is devoid of merit and the Applicants are undeserving of the orders sought.b.The Applicants have not demonstrated what substantial loss or prejudice they will face should they comply with the judgment. The Ex-Parte Applicants/Respondents were members and office bearers in the Union prior to the illegal ousting by the Respondent/ Applicant.c.The Respondent have not shown, through a draft Memorandum of Appeal, that they have an arguable case capable of success or a meritorious appeal. They have merely filed a Notice of Appeal. DECISION 5.I have carefully considered the Notice of Motion dated 13th January 2026, the grounds thereof and Affidavit in Support thereof; the Replying Affidavit sworn by Joseck Olukusi Alwala on 16th February 2025. I return that the only issue for determination is as follows:-i.Whether this Court should grant stay of execution pending Appeal. Whether this Court should grant stay of execution pending Appeal. 6.Preliminarily, it is the court’s observation that the prayer sought by the Applicant is “stay of execution of the Judgment, Decree and Orders of the Court pending the hearing and determination of this application”. However, the grounds that they rely on, the Respondents’ Replying Affidavit and the parties’ submissions, all speak to a stay of execution pending appeal. The Applicant therefore appears to have made a clerical error when drafting their prayers, and this Court under Rule 34 of the Employment and Labour Relations Court (Procedure) Rules 2024 is clothed with jurisdiction to, either at the request of the parties or on its own motion, cause any clerical mistake, incidental error or omission to be rectified and shall notify the parties of such rectification. I shall therefore proceed to determine the present application as if it were originally an application for stay of execution pending appeal. 7.The appeal filed before the Court of Appeal as referenced by the Applicant herein emanates from a Judgment of this Court delivered on 18th December 2025 in this matter. The Respondent/Appellant, therefore, has a right of Appeal to the Honourable Court of Appeal under Section 3 (1) of the Appellate Jurisdiction Act Cap 9 of the Laws of Kenya. 8.Under Rules 75 (1) and (2) of the Court of Appeal Rules 2010, an Intended Appellant must give notice in writing of their intention to appeal within 14 days of the decision which they intend to appeal against. The Respondent/Appellant herein filed a Notice of Appeal dated 13th January 2026, approximately 26 days after the delivery of the impugned judgment. No evidence has been presented to me indicating that the Appellant sought leave to file their appeal out of time. The filed Notice of Appeal cannot stand applying authority of Salat v Independent Electoral and Boundaries Commission & 7 others(Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling).The applicant does not appear to have complied with the provisions of Rules 75 (1) and (2) of the Court of Appeal Rules, in order for there to exist a valid appeal upon which orders of stay of execution pending appeal may be anchored. 9.That being said, I am obliged to consider the law relevant to stay of execution pending appeal, namely Order 42 Rule 6 (1) and (2) of the Civil Procedure 2010 It provides:“Stay in case of appeal(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.” 10.There is no doubt whatsoever that this Court entered judgment in favour of the Ex-Parte Applicants/Respondents on 18th December 2023 and issued an order of certiorari to quash the decision of the Respondent/Appellant to revoke their membership to the Union and entitlement to hold official positions in the National Executive Committee and Branch Executive Committee; and an order of mandamus directing the Appellant/Respondent to immediately reinstate the Ex-Parte Applicants as members of the Respondent Union and recognize them as members and officials thereof. 11.Had I found that there was a valid appeal filed by the Appellant/Respondent, I would have proceeded to consider the requirements for grant of stay of execution pending appeal, namely whether substantial loss may result to the applicant unless the order is made; whether the application has been made without unreasonable delay; and whether the Appellant/Respondent is willing to deposit such security as the court orders for the due performance of such decree. 12.In the present case, the Respondent/Appellant has stated that unless stay of execution is granted, the Respondents will assume office and participate in union governance, which will occasion institutional confusion, administrative disruption, and loss of disciplinary control within the Applicant Union. The Ex-Parte Applicants have countered by stating that they were already serving as Union members and officials prior to their removal by the Respondent/Appellant. I have confirmed that the averments by the Ex-Parte Applicants/Respondents on this issue are true from the Judgment delivered on 18th December 2025 where it is recorded that the Respondent admitted that the Ex-Parte Applicants served prior to their removal from office, as Deputy Secretary General/Branch Chairman; and Branch Secretary of the Respondent’s Kibabii branch (page 4 of Judgment). Later in the impugned judgment, the Court held that they had been wrongfully expelled from their positions in their absence at the KUSU Annual Delegates Conference held on 17th November 2023. The court noted that no notice of misconduct of charges against the Ex-Parte Applicants duly served on them prior to their removal as officials, had been produced before the Court. As such, I am inclined to agree with the Ex-Parte Applicants that the Respondent/Appellant, having failed to prove the misconduct that the exparte applicants committed to warrant their removal from office, have also not demonstrated satisfactorily what substantial loss they would suffer if stay of execution is not granted, and the Ex-Parte Applicants resume office. 13.While I acknowledge that the present application was brought without unreasonable delay, having been filed on 13th January 2026, 26 days after delivery of judgment, for the reason that there is no valid appeal on record, the application for stay of execution fails. 14.In the upshot, the Notice of Motion dated 13th January 2026 is dismissed with costs. 15.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 : - Atito h/b OdenyRespondent: Mukonyi