University of Nairobi v Oyaro (Appeal E438 of 2025) [2026] KEELRC 1398 (KLR) (15 May 2026) (Ruling)

University of Nairobi v Oyaro (Appeal E438 of 2025) [2026] KEELRC 1398 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1398 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E438 of 2025 JW Keli, J May 15, 2026 Between University Of Nairobi Applicant and Peter Mauti Oyaro Respondent Ruling 1.The applicant is dissatisfied with the judgment delivered on the 25th November 2025 of the Hon T.M. Olando (PM) in MCELRC No. E2221 of 2022 between the parties filed application by way of Notice of Motion dated 16th December 2025 brought under Order 42 Rule 6 and 8 of the Civil Procedure Rules, 2010 and all enabling provisions of the law for Orders that;a.spentb.There be an unconditional interim stay of execution of the judgment and decree entered on 25th November 2025 in MCELRC No. E2054 of 2022, Edward Munyao-Vs- University of Nairobi and/or further proceedings in MCELRC No. E2054 of 2022, Peter Mauti Oyaro -Vs- University of Nairobi pending the interpartes hearing and determination of this application.c.That the judgment and execution of decree entered orders made on 25th November 2025 in MCELRC No. E2054 of 2022, Peter Mauti Oyaro -Vs- University of Nairobi be unconditionally stayed pending the hearing and determination of this Appeal.d.Costs of this application be provided for. Grounds of the application 2.That the Appellant is aggrieved by the judgment and orders made by the Trial Court 25th November 2025 in MCELRC No. E2054 of 2022, Peter Mauti Oyaro -Vs- University of Nairobi and has filed this appeal against the said decision. This appeal raises arguable issues and has high chances of success. 3.The Appellant is apprehensive that the Respondent herein may proceed to commence execution against the Appellant thus defeating the substratum of this appeal and rendering the consequent judgment a mere paper judgment. 4.It is therefore necessary that the judgment and or decree issued in MCELRC No. E2054 of 2022, Peter Mauti Oyaro -Vs- University of Nairobi be stayed pending the hearing and determination of this application and appeal. 5.That the Appellant seeks that the stay orders be issued without condition on deposit of security. The aforesaid ground is premised on the following;-i.The Appellant is a public university which is maintained out of public funds. The main source of income for the University is capitation from the Government.ii.The Appellant is facing serious financial constraints in that government has not remitted capitation to the Applicant. Further, the Government has reduced fees payable by the students which has had a detrimental effect on the financial position of the University.iii.That the Appellant's existing circumstances and financial positions makes it technically insolvent thus cannot meet its financial obligations as and when they fall due.iv.Pursuant to Order 42 Rule 8 of the Civil Procedure Rules, a public institution is not required to deposit security as a condition for grant of stay orders. 6.That should the Honourable Court be inclined to issue an order requiring that security be deposited as a condition for grant of stay orders, the Appellant urges that an order be issued to the effect that the Appellant provides a bank guarantee in favour of the judiciary for half of the decretal sum. 7.The applicant was supported by the annexed supporting affidavits of Mr. Keneth K. Sawe and Mr. Michael Kitsao Menza, where they produced a copy of the impugned Judgment and of the memorandum of appeal. Response 8.The respondent filed his replying affidavit, sworn on the 8th January 2026, and averred as follows-a.That the Notice of Motion Application as filed herein is a non-starter and an abuse of this Honourable Court's process.b.That the Applicant has not advanced any valid reasons justifying a stay of the Honourable Court's judgment which was entered regularly and after taking evidence, reviewing the filed documents and correctly applying the provisions in the Employment Act and the Labour Relations Actc.That apart from allusions of substantial loss the deponent has not demonstrated that substantial loss would be occasioned if stay is not granted, as such remains mere allegations.d.That payment of gratuity in this case cannot be termed to be substantial loss.e.That this application has not been brought in good faith as it is a tactic by the Applicant to further stretch litigation as nothing has been presented to demonstrate that the Applicant will be prejudiced if the orders sought are not granted.f.That no offer for security has been offered by the applicant thus disentitling her of the orders sought.g.That this court should not only entertain the Applicant but also safeguard my interests as I have waited for this judgment since 30th June 2020 when I was retired.h.That it is unfair for the Applicant to continue actively discriminating on payment of terminal dues where else other employees were paid at the rate of 31% upon retirement at the institution.i.That I am a successful litigant entitled to enjoy the fruits of judgement and decree but is being restricted while in pursuit for the same for no good reason.j.That I swear this affidavit in opposition to the Applicant's notice of motion application dated 16th December 2025 and pray that the same be dismissed with costs.k.That in the unlikely event this court finds merit in the application for stay, for fairness sake, the decretal sum ought to be secured in a joint interest earning account in the name of the advocates for the parties. Decision 9.The application was canvassed by way of written submissions. Both parties filed Whether the application was merited. 10.It is instructive to note that the impugned Judgment is dated 25th November 2025, and the application was filed on 18th December 2025. The Employment and Labour Relations Court (Procedure) Rules 2024 on stay of execution in case of appeal states:-21.(1)Where an application for stay of execution pending appeal has been lodged, the applicant shall, in the supporting affidavit, declare whether a similar application has been filed in any other court(2)An application for stay of execution pending appeal shall be filed in the appeal file.’’ The applicant filed a memorandum of appeal dated 16th December 2025 received in court on 17th December 2025 , thus the appeal was filed within the statutory timeline of 30 days.Rule 73 of the ELRC Rules (2024) reads- ‘73. Execution and warrants(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 is Order 42 Rule 6 (2) of the Civil Procedure Rules to wit:-(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.’’ The court was of the opinion there was no inordinate delay in filing the application. 11.The Court noted that the judgment sum of Kshs 1,526,717.40 plus interest and costs was substantial. The Respondent is correct in stating that the subject decree, being a money decree, can be refunded if the Intended Appellant is successful. However, he has not demonstrated his ability to re-pay the decretal sum by filing affidavit of means. The test for whether an Applicant will suffer substantial loss where a money decree is in issue was set out in the case of Century Oil Trading Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where the court held: “Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment.” 12.The court established that it was not in dispute that the applicant was a public body funded by the exchequer. Indeed, even the awarded gratuity 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 of application of Order 46 (8) of the Civil procedure Rules, hence exempt from deposit of security for the performance of decree. 13.In the upshot, the court found it is in the public interest to allow the application for stay of execution, noting that the money decree is to be settled from public funds, and if paid, the respondent did not demonstrate financial capacity to refund the decretal sum in the event of a successful appeal. Furthermore, there is a real danger of the appeal being rendered nugatory. The court, being the court of first appeal, was persuaded that the appeal raised arguable points, taking into account the decision of the court on the subject matter of the said CBA in Nairobi Cause No. E722 of 2022, The University of Nairobi v KUDHEIHA and others. 14.In the upshot, the application is allowed. The Court is pleased to issue an unconditional order of stay of execution is issued against the judgment and decree dated 25th November 2025 in MCELRC No. E2221 of 2022, Peter Mauti Oyaro -Vs- University of Nairobi, pending the hearing and determination of this Appeal. The court to fast-track the appeal in the interest of justice and not to prejudice the decree holder. 15.Costs of the application in the cause.Obiter - The applicant is directed to obtain the proceedings of the lower court and file the record of appeal within 30 days. Mention on 29th June 2026 before the Deputy Registrar of the Appeals Division to confirm the status and issue further directions. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELI,JUDGEIn the presence of:Court Assistant: OtienoAppellant: Collins OmondiRespondent: Kamau h/b Onenga