[2024] KEELRC 2103 (KLR)

Wekesa v Mount Kenya University (Petition 138 of 2016) [2024] KEELRC 2103 (KLR) (2 August 2024) (Ruling)

Neutral citation: [2024] KEELRC 2103 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition 138 of 2016

J Rika, J

August 2, 2024

Between

Pro Dr Moni Wekesa

Petitioner

and

Mount Kenya University

Respondent

Ruling

1. Judgment was delivered in favour of the Petitioner on 8th March 2024.

2. The Petitioner was granted equivalent of 9 months’ salary in compensation for unfair termination; damages for multiple constitutional violations; balance of severance pay; balance of notice pay; and balance of January 2016 salary. The total award is Kshs. 6,855,170.

3. This award is against a prayer by the Petitioner, for a total sum of Kshs. 46,172, 728.

4. The Respondent has applied for an order of stay of execution of Judgment / Decree pending Appeal.

5. The Application dated 2nd April 2024 is supported by the Affidavit of the Respondent’s Human Resource Officer Stella Nzilani, sworn on 2nd March 2024.

6. She posits that, the Trial Court was in error, by granting separate remedies under the Employment Act and the Constitution; that the Respondent has lodged a Notice of Appeal and requested for typed and certified Proceedings; that award was inordinately high; that the Petitioner’ s employment was governed by his contract and private law; that the Application has been presented without delay; that the Court disregarded part of the Respondent’s closing submissions; that the Appeal would be rendered nugatory if the orders sought are not granted; and that the Respondent is willing, to abide by any conditions the Court may impose, on grant of the order of stay of execution.

7. Parties consented to have the Application considered and determined on the strength of their written submissions, which were confirmed to have been filed and exchanged at the last mention, on 3rd July 2024.

The Court Finds: - 8. The submission by the Respondent that the award of the Court was inordinately high, is unfounded.

9. The Petitioner pursued a total sum of Kshs. 46,172,728, which the Court declined. The Court not only declined granting this inordinately high sum, but also decried the emerging trend, where employment claims are being converted into a cash-grab industry, and allowed the Petitioner, who is a Professor of Law, a modest sum of Kshs. 6,855,170. The Court knocked off a staggering sum of about Kshs. 40 million, from the sum demanded by the Petitioner.

10. There is no persuasion, in the submission that grant of statutory remedy alone, should have sufficed, and that grant of constitutional remedy for the grave violations which were established by the Petitioner, was erroneous, and led to an inordinately high award.

11. The Respondent has not cited any law, which states that statutory remedies, are granted in exclusion to constitutional remedies.

12. The Respondent ignores the nature of its violations against the Petitioner; the totality of the evidence on record; and, the Petitioner’s own submissions on compensation and damages, in submitting that the award was inordinately high.

13. It is not even explained to the Court why, the balance of severance pay; notice; and January 2016 salary, should continue to be withheld from the Petitioner, by way of stay of execution, having been withheld from the year 2016.

14. Lastly, there is absolutely no reason why Judgment on Appeal if successful, would be rendered nugatory as suggested by the Respondent.

15. At paragraph 4 of its submissions dated 1st July 2024, the Respondent states that its Appeal would be rendered nugatory, ‘’as the Respondent has raised pertinent issues which should be addressed by the Court of Appeal.’’ Paragraph 5 states that the Appeal shall be rendered nugatory if the orders sought are not granted, as evidenced by the Memorandum of Appeal. These arguments do not establish why the Appeal would be rendered nugatory. Nothing is said about the status of the Petitioner, and his ability or inability, to refund the Respondent, in event its Appeal succeeds. It is not suggested that he is impecunious. It is not suggested that he is an obscure litigant, who or whose wealth, would be difficult to trace, if the Respondent is to pursue any decree of the Court of Appeal against him.

16. The Petitioner is clearly, not a man of straw, with no known fixed address. He is a renowned, and towering Professor of Law, who stands in plain sight, in the legal profession and academia. He is a well-known academic and legal professional. He is a published author. His current University, where he teaches, is known. These are matters that were disclosed on trial, and commonly known to the Parties. He is not likely to fail to refund the Respondent University a modest sum of Kshs. 6,855,170, if the Judgment made in his favour, is overturned on Appeal. The Court does not think that refusal to stay execution of its decision, would in way prejudice the Respondent’s Appeal.

17. There are various factors that the Court takes into account, as enunciated by the Respondent, in considering whether to stay execution of its Judgment/ Decree. The most fundamental is whether, execution would impair the Applicant’s right of appeal. If it is unlikely to impair the right of appeal, there is no need to impair the holder of the decree, in fulfilment of his equally protected right, to enjoy the result of his litigation.

18. The Respondent, as observed above, submits that if an order of stay of execution is not granted, its Appeal would be rendered nugatory. There is no reason absolutely, given by the Respondent, why its Appeal would be rendered nugatory.

19. This Petition was filed in 2016, 8 years ago, and the Court has dealt with it, comprehensively, fairly and to the best of its ability, and finds no reason to prolong the Petitioner’s 8-year wait, for a remedy. If there is fault in grant of remedy, the position can be corrected on Appeal without any prejudice to the Respondent.

It Is Ordered: -a.The Application for stay of execution of Judgment/Decree filed by the Respondent, dated 2nd April 2024, is declined.b.Costs to the Petitioner.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 2ND DAY OF AUGUST 2024. JAMES RIKAJUDGE