https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1462

Teachers Service Commission v Akongo (Employment and Labour Relations Appeal E011 of 2026) [2026] KEELRC 1462 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1462 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Employment and Labour Relations Appeal E011 of 2026 HS Wasilwa, J May 29, 2026 Between Teachers Service Commission Appellant and Kennedy Odhiamdo Akongo Respondent Ruling 1.The Appellant/ Applicant filed a Notice of Motion dated 5th February 2026 seeking orders: -1.Spent2.That the Honourable Court be pleased to order stay of execution of the Judgment of Hon. P.N. Gesora (cm) Delivered On 22/1/2026 In Makueni Cmelrc No. E003 Of 2023 Kennedy Odhiamdo Akongo VS TSC and all the consequential Orders pending the hearing and determination of this Application;3.That the Honourable Court be pleased to order stay of execution of the Judgment of Hon. P.N. GESORA (CM) delivered on 22/1/2026 in Makueni CMELRC NO. E003 of 2023 KEnnedy Odhiamdo Akongo Vs Tsc And All Consequential Orders Pending The Hearing And Determination Of Machakos Elrc Appeal No. E011 of 2026;4.That the costs of this Application be provided for. Appellant/Applicant’s Case 2.The Applicant’s case is that this Honourable Court delivered judgment in Makueni CMELRC No. E003 of 2023, Kennedy Odhiambo Akongo vs TSC, in favour of the Claimant/Respondent. Being dissatisfied with the entire judgment, the Appellant has exercised its right of appeal by filing the instant applicant against the said judgment. 3.The Applicant states that the appeal raises substantial and weighty issues of law with high probabilities of success as demonstrated in the Memorandum of Appeal. 4.It is the Applicant’s case that unless an order of stay is granted, it is likely to suffer irreparable loss and damage. It contends that Respondent’s reinstatement will disrupt its internal processes and undermine its constitutional and statutory mandate. It further asserts that reinstatement is contrary to the common law doctrine of mutuality of contracts and the principle of freedom of contract. 5.The Applicant further avers that reinstatement will erode and/or compromise the nobility, integrity and sanctity of the teaching service. 6.It also contends that the Respondent may not be able to refund the equivalent of 12 months’ salary together with costs and interest in the event the appeal succeeds. The Applicant states that reinstatement to employment is a process that cannot be undone should the appeal ultimately succeed. 7.The Applicant further avers that by virtue of Section 21 of the Teachers Service Commission Act and Article 260 of the Constitution, it is exempt from depositing security for costs under Order 42 Rule 8 of the Civil Procedure Rules, 2010, as it is capable of satisfying the decree should the appeal fail. 8.The Applicant contends that unless the Application is heard urgently and the orders sought granted, the intended appeal shall be rendered nugatory and merely academic. 9.It is the Applicant’s case that in the interest of justice and fairness, the subject matter of the appeal ought to be preserved pending the hearing and determination of this suit. 10.The Applicant further states that the decretal sum comprises public funds which ought to be preserved owing to public interest considerations. 11.It avers that the Respondent will not suffer prejudice if the orders sought are granted since the Applicant is capable of satisfying the decree in the event the appeal is unsuccessful. 12.The Applicant asserts that it has satisfied the requirements under Order 42 Rule 6 of the Civil Procedure Rules, 2010 and therefore urges the Court to grant orders of stay pending the hearing and determination of the appeal. It further avers that the present application was filed timeously and without unreasonable delay. Respondent’s Case 13.In opposition to the application, the Respondent filed a replying affidavit dated 4th March 2026. 14.The Respondent avers that stay of execution is governed by Order 42 Rule 6(2) of the Civil Procedure Rules and that an Applicant must demonstrate substantial loss, timeliness and provision of security. 15.The Respondent avers that the Applicant has failed to demonstrate any substantial loss that may arise if the decree is executed. He states that the Applicant is a constitutional commission funded through public funds and has not demonstrated any operational or financial incapacity to comply with the decree. 16.The Respondent contends that the decree comprises reinstatement and payment of twelve months’ salary which cannot reasonably occasion substantial loss to an institution of the Applicant’s financial standing. 17.He avers that no financial statements, budgetary constraints or evidence of prejudice have been produced to demonstrate that compliance with the decree would disrupt the Applicant’s operations or mandate. 18.It is the Respondent’s case that reinstatement merely restores the employment relationship and does not extinguish the Applicant’s disciplinary mandate and authority under the law. 19.He further states that in the event the appeal succeeds, the Applicant retains full administrative and disciplinary powers in accordance with the law. 20.The Respondent contends that the allegation that reinstatement is irreversible is incorrect as employment relationships are by nature regulatable through lawful administrative action. He further avers that although proceedings against the Applicant are deemed proceedings against Government and the Applicant is ordinarily not required to deposit security, such status does not automatically entitle it to orders of stay without proof of substantial loss. 21.The Respondent asserts that the present Motion is founded on apprehension and speculation rather than evidence of actual loss. He states that after a full hearing, the trial court found that his dismissal was unlawful and procedurally unfair. 22.The Respondent further avers that the investigator in his case participated in the disciplinary panel thereby violating the rules of natural justice and procedural fairness. Further, the examination results were ultimately released, confirming absence of malpractice and thereby undermining the basis of the disciplinary action taken against him. 23.The Respondent avers that he has been out of employment for approximately four years and has suffered financial hardship and loss of livelihood. He contends that continued delay in enforcement of the judgment will occasion him further prejudice which cannot be adequately remedied by damages. 24.It is the Respondent’s case that the balance of convenience favours enforcement of the judgment since he continues to suffer prejudice while the Applicant has failed to demonstrate any tangible prejudice. He further asserts that public interest favours obedience to court judgments and protection of employees from unlawful administrative action. 25.The Respondent therefore contends that the Applicant has failed to meet the legal threshold for grant of stay of execution and prays that the application be dismissed with costs. Respondent’s Submissions 26.The Respondent submitted on two issues: Whether the Applicant has satisfied the statutory threshold for the grant of stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010; Whether the balance of convenience and public interest favour the grant of stay of execution or the Respondent’s immediate enjoyment of the fruits of judgment. 27.On the first issue, the Respondent submitted that an appeal does not operate as an automatic stay of execution and that the conditions for grant of stay are expressly provided under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010. 28.It is the Respondent’s submission that these conditions are not merely directory but are mandatory and conjunctive, meaning all must be satisfied for a stay to be granted. He relied on Butt v Rent Restriction Tribunal [1982] KLR 417, where the Court held that discretion to grant stay must be exercised judiciously so as to ensure an appeal is not rendered nugatory while at the same time safeguarding a successful litigant’s right to enjoy the fruits of judgment. 29.On substantial loss, the Respondent submitted thatthe gravamen of the Court’s jurisdiction in determining applications for stay of execution lies in the demonstration of substantial loss that may result to the applicant if the stay is not granted as held by Platt Ag. JA in Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] eKLR. 30.The Respondent submitted that substantial loss is intended to preserve the subject matter so that a successful appeal is not rendered nugatory, while ensuring the successful litigant is not deprived of the fruits of judgment as held in RWW v EKW [2019] eKLR. 31.The Respondent further submitted that the mere fact that execution is imminent, or that the decretal sum is substantial, does not, by itself, constitute substantial loss warranting a stay as observed in James Wangalwa & Another V Agnes Naliaka Cheseto[2012]eKLR. 32.The Respondent submitted that the Applicant merely made speculative allegations that reinstatement would disrupt its constitutional and statutory mandate, undermine the teaching service, violate the doctrine of mutuality of contracts and occasion loss of public funds. It was submitted that such allegations amount to disagreement with the judgment rather than proof of substantial loss. 33.It was submitted that reinstatement is a lawful statutory remedy under employment law and that execution of such decree cannot amount to substantial loss. The Respondent argued that if the appeal succeeds, the employment relationship may lawfully be terminated in accordance with the law and any payments made would remain recoverable as a civil debt. 34.The Respondent further submitted that the Applicant had failed to place before Court any evidence showing inability on the part of the Respondent to refund the decretal sum as required in Antoine Ndiaye v African Virtual University [2015] eKLR: “The onus of proving substantial loss and in effect that the Respondent cannot repay the decretal sum if the appeal is successful lies with the Applicant; follows after the long age legal adage that he who alleges must proof. Real and cogent evidence must be placed before the court to show that the Respondent is not able to refund the decretal sum should the appeal succeed.” 35.Relying on Congress Rental South Africa v Kenyatta International Convention Centre; Co-operative Bank of Kenya Limited & another (Garnishee) [2019] eKLR, the Respondent submitted that where the Applicant fails to prove, as is required by law and by evidence, that it shall suffer substantial loss if the lawful Court’s order is enforced and stay of execution denied, then there is no basis for the court to deny the Respondent the right to enjoy the fruits of its judgment. 36.The Respondent submitted that the Applicant’s argument that public funds ought to be protected does not by itself amount to substantial loss. It was argued that if stay were to issue merely because public funds are involved, then decrees against Government institutions would automatically be stayed thereby rendering the rights under Articles 48 and 50 of the Constitution illusory. 37.The Respondent further submitted that reinstatement is a restorative remedy intended to cure unlawful administrative action and that suspension of reinstatement pending appeal perpetuates the illegality already found by the Court. 38.On security, the Respondent submitted that under Order 42 Rule 6(2)(b) of the Civil Procedure Rules, provision of security is ordinarily mandatory. However, the Applicant, being the Teachers Service Commission established under Article 237 of the Constitution, and by virtue of Section 21 of the Teachers Service Commission Act, is exempt from furnishing security as proceedings against it are deemed proceedings against Government and subject to the Government Proceedings Act. 39.The Respondent however argued that the exemption from furnishing security does not render the Applicant’s application automatically meritorious, security and substantial loss are distinct conditions. 40.It is the Respondent’s submission that theprimary purpose of security is to protect the successful party should the appeal fail, enabling them to enjoy the fruits of their judgment as explained in Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014 eKLR . 41.The Respondent thus submitted that the Applicant is exempt from furnishing security, the rationale behind the rule remains relevant to the Court’s discretion and cannot substitute for the proof of substantial loss. It is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal fails. 42.On the balance of convenience and public interest, the Respondent submitted that the Court is obligated to balance the competing interests of the parties and the broader public interest as held in was placed on Global Tours & Travels Limited v Five Continents Travel Limited [2015] eKLR, wherein it was held: “..And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of the case, the prima facie merits of the intended appeal in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought timeously.” 43.It was submitted that the Respondent has remained out of employment for nearly four years and has suffered financial hardship, loss of livelihood, reputational damage and psychological distress. The Respondent argued that further delay in enforcement of the judgment would only exacerbate the prejudice already suffered. 44.The Respondent further submitted that the Applicant, being a constitutional commission funded by public resources, had failed to demonstrate any irreparable harm or prejudice if the decree is executed. It was argued that should the appeal succeed, the Applicant still retains statutory and disciplinary powers to take lawful administrative action against the Respondent. 45.The Respondent submitted that public interest favours enforcement of lawful court orders, restoration of employment where dismissal has been found unlawful and maintenance of public confidence in the rule of law. 46.It is the Respondent’s submission that the Applicant failed to establish the jurisdictional basis for exercise of discretion in its favour and that where substantial loss is not demonstrated, discretion does not arise. The Respondent urged the Court to find that the balance of convenience and public interest overwhelmingly favour enforcement of the judgment delivered on 22nd January 2026. 47.I have examined all the averments and submission of the parties herein. The applicants seeks orders of stay pending appeal. The applicants have averred that they have preferred an appeal to this court following a judgement in the lower court dated 21/1/2026. 48.The respondents opposed the application indicating that the applicants have not demonstrated that they will suffer irreparable harm if the decree is not executed. 49.It is not contested that the appeal has been filed. It is also not in doubt that the orders granted in the judgment and especially the reinstatement if granted would defeat the appeal if the appellants succeed. 50.In order to avoid a miscarriage of justice, I will allow stay orders pending appeal. The court further directs that the appeal be expedited in order to defeat any miscarriage of justice especially in view of the orders granted by the lower court. Costs in the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 29TH DAY OF MAY, 2026.HELLEN WASILWAJUDGE