Awino (Suing as the administrator of the Estate of the lLate Professor Fredrick Otieno) v Masinde Muliro University of Science and Technology & another (Cause E512 of 2019) [2026] KEELRC 123 (KLR) (23 January 2026) (Ruling)
Neutral citation:
[2026] KEELRC 123 (KLR)
Republic of Kenya
Cause E512 of 2019
JW Keli, J
January 23, 2026
Between
Dr Florence Awino (Suing as the administrator of the Estate of the lLate Professor Fredrick Otieno)
Applicant
and
Masinde Muliro University of Science And Technology
1st Respondent
Professor Jeremy Miriti Bundi
2nd Respondent
Ruling
1.Judgement was delivered in this matter on 16th June 2025 in favour of the Claimant by Justice Kebira Ocharo in the suit. The Respondents/Applicants moved this Honourable Court vide an Application dated 8th August 2025 seeking for Orders;a)Spentb)Spentc)That there be an order for stay of execution of the judgement of this court pending the hearing of this application inter partes.d)That there be an order for stay of execution of the judgement of this court pending the hearing and determination of the appeal in the Court of Appeal.e)That the costs of this Application be in the cause.
2.The grounds of the application- On 16th of June 2025 this Honourable court delivered judgment in favour of the Claimant as against the Respondents. The Respondents are aggrieved by the judgment and have preferred an appeal in the Court of appeal. The intended appeal has merits, raise triable issues and has high chances of success. The orders of stay of execution granted by the court have since lapsed. The Respondents are apprehensive that the Claimant may initiate the process of executing the judgment. In the event that execution is levied against the Respondents, the intended appeal will be rendered nugatory and the Respondents will suffer irreparable loss. It is therefore in the interest of justice that orders of stay of execution be granted.
3.The application was supported by undated affidavit sworn by Grace Nyambura Mburu.
4.The Claimant/Respondent opposed the Application vide her Replying Affidavit sworn on 28th October 2025.
5.The Applicant filed a further affidavit sworn on 14th November 2025.
6.The application was canvassed by way of written submissions. Both parties filed.
Decision
7.Applicant submitted the issues for determination as follows: -a.Whether this Honourable Court has jurisdiction to hear and determine this application?b.Whether the Applicant has an arguable case; andc.c. Whether the orders of stay of execution pending the hearing and determination of this appeal should be granted.
8.The respondent identified the following issues for determination in the application=i.Whether this Honourable Court has jurisdiction to entertain the instant Application.ii.ii. Whether the Application is incompetent for having been supported by a defective Affidavit.iii.Whether this Honourable Court has been properly moved to admit new evidence post judgement.iv.iv. Whether the Applicants’ have met the requirements for grant of stay of execution.
9.The court having perused the application and the issues by the parties, condensed the issues by the parties as follows-a.Whether this Honourable Court has jurisdiction to hear and determine this application?b.Whether the Application is incompetent for having been supported by a defective Affidavit.c.Whether the Applicant has met the requirements for the grant of a stay of execution pending the intended appeal.
Whether this Honourable Court has jurisdiction to hear and determine this application?
10.The question of jurisdiction was raised by the respondent who submitted as follows- the jurisdictional foundation of this Application is fundamentally flawed. While Order 42 Rule 6 of the Civil Procedure Rules generally contemplates stay applications in the court appealed from, this general provision is expressly displaced by the specific, mandatory regime governing this Court. Rule 21(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024, provides in unequivocal terms: "An application for stay of execution pending appeal shall be filed in the appeal file. The use of the mandatory term "shall" and the specific designation of the "appeal file" as the proper forum leaves no room for discretion or recourse to any other rule. This Honourable Court, having rendered its final judgment, is functus officio on the substantive dispute. Its residual authority to grant stay pending appeal has been explicitly channeled and confined by its own procedural code to applications filed within the appellate record. The Applicants’ reliance on the general execution provisions of Rule 73 is, with respect, a clear case of misapprehension. The doctrine of lex specialis derogat legi generali, as affirmed in M J v N K & another, HCCA 93 of 2014, [2017] eKLR, mandates that the specific law (Rule 21(2)) prevails over the general law (Rule 73 or Order 42). Rule 73 governs process in execution; it cannot resurrect a jurisdiction specifically removed by Rule 21 in the context of appeals. Accordingly, any attempt by the Applicants to bypass the mandatory and exclusive dictates of Rule 21 by sheltering under the generalized canopy of Rule 73 is untenable, irregular, and procedurally improper. The Claimant/Respondent therefore submits that this Honourable Court is functus officio. Once the Court has delivered its final judgment, it became bereft of jurisdiction to reopen, revisit, or alter its decision, save in strictly delimited circumstances expressly sanctioned by statute or rule. Consequently, the instant Application, filed in the trial file, is incurably defective for want of jurisdiction. The Applicants’ proper and only recourse was to file their application in the Court of Appeal file. To hold otherwise would be to disregard the clear legislative intent and the binding procedural architecture of this Court. The Claimant/Respondent therefore most strenuously submits that this Honourable Court lacks the jurisdictional competence to adjudicate this Application, which must be struck out or dismissed on this threshold point alone.
11.Conversely, the applicant submitted the court had jurisdiction as follows- The applicant submitted that the legal framework governing stay of execution pending appeal is set out in Rule 73 (2) of the Employment and Labour Relations Court (Procedure) Rules, which adopts Order 42, Rule 6, Sub-rules (1) and (2) of the Civil Procedure Rules as the governing standard. Additionally, where this court's rules are insufficient, the Civil Procedure Rules should apply as held in Advani v Aspen Pharmacare Holdings Limited [2024] KEELRC 13363 (KLR). We submit that Rule 73 of the Employment and Labour Relations Court Act states that:- "....on execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules." An application for a stay of execution pending appeal is an interlocutory application subsequent to the main judgment, which is aimed at ensuring that the subject matter of the dispute and or substratum of the suit is maintained ensuring the appeal is not rendered nugatory and become an academic exercise. Evidently it is not a re-hearing of the suit. As such this Honourable Court has the inherent power and jurisdiction to entertain such this instant application. In view of the foregoing, it is clear that this Honourable Court has the jurisdiction to hear and determine applications such as this and the fact that it has rendered its judgement does not in a totality make it functus officio hence hindering it from issuing any subsequent orders in the matter.
Decision on jurisdiction
12.It is not in dispute the impugned Judgment was of the court delivered by my Brother Justice Ocharo Kebira. The respondent challenged the jurisdiction of the court relying on Rule 21(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024, to wit "An application for stay of execution pending appeal shall be filed in the appeal file’’ and submitted that the use of the mandatory term "shall" and the specific designation of the "appeal file" as the proper forum leaves no room for discretion or recourse to any other rule. The applicant relied on Rule 73 of the Court rules to wit- ".... execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules."
13.The court, on perusal of the Court rules, found that Rule 21(2) falls under Part 3 of the Rules concerning appeals to the court from magistrates' courts or other forums, like decisions of the Director of Occupational Safety and Health. Consequently, Rule 21 (2) does not concern appeals to the Court of Appeal. The relevant rule is thus Rule 73 (2) of the Court Rules to wit-‘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 decision challenged is the Decree of the Court and thus the court is clothed with jurisdiction to hear and determine the application under Order 42(6) of the Civil Procedure Rules as stated in Rule 73(2) of the Court Rules.
Issue 2 -Whether the Application is incompetent for having been supported by a defective Affidavit.
14.The respondent submitted on the issue as follows- Section 5 of the Oaths and Statutory Declarations Act (Cap. 15, Laws of Kenya) states that, “a Commissioner for Oaths must state truly, in the jurat, the place and date on which the oath/affidavit was taken.” The Application before the Honourable Court is supported by a Supporting Affidavit which is undated and also does not indicate the place where it was sworn. This defect is not a minor procedural error but one that affects the veracity and probative value of the averments and as such, the affidavit should be struck out. The Court in Joan Akoth Ajuang & Another V Michael Owuor Osodo The Chief Ukwala Location & 3 Others; Law Society Of Kenya & Another [2020] KEHC 9788 (KLR) opined that “…I find and hold that defects identified cannot be remedied by section 1B (1) (e) of the Civil Procedure Act, Order 19 Rule 7 of the Civil Procedure Rules, Rule 3(5) and (8) of the Mutunga Rules, 2013 or Article 159(2) (d) of the Constitution. This is because the defects affect the veracity and probative value of the averments, which goes to the substance of the affidavits.” In the case of Konchellah v Sunkuli & 2 others [2018] KESC 58 (KLR) the Supreme Court of Kenya held as follows: - "Hence, an affidavit must clearly state the place and date where it was made and it must be made before a Magistrate or a commissioner for oaths. We have no hesitation in finding that the purported Replying Affidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has no legal value in the matter before us. We have checked all the eight copies of the Replying Affidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and date. Consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1st Respondent." The Claimant/Respondent in this regard submits that the Affidavit being defective renders the entire application incompetent and the same should suffer only one fate, that of dismissal. In Z–U-DG v SJK-U [2021] KEHC 13549 (KLR) the Court reached a similar finding stating that; “28. Due to the omission to have the supporting Affidavit commissioned it is deemed that there is no supporting Affidavit on record. This renders the application defective as there is no “evidence" to support the prayers being sought in the application Finally and in conclusion, I dismiss in its entirety the Notice of Motion dated 11th August 2020.’’
Decision on competence of the application
15.The applicant did not submit on this issue. The respondent relied on the case of Konchellah v Sunkuli & 2 others [2018] KESC 58 (KLR) where the Supreme Court of Kenya held as follows: - "Hence, an affidavit must clearly state the place and date where it was made and it must be made before a Magistrate or a commissioner for oaths. We have no hesitation in finding that the purported Replying Affidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has no legal value in the matter before us. We have checked all the eight copies of the Replying Affidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and date. Consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1st Respondent." In the instant case the omission in the affidavit was lack of date. This was the scenario in John Marete Kirema &another v Gladys Karimi Muthamia & 3 Others [2013] KEHC 4163 (KLR where Justice J.A. Makau held as follows-The section is crafted in such a way that it is mandatory for a commissioner before whom any affidavit is taken to State truly in the jurat or attestation at what place and on what date the oath or affidavit was taken or made. My understanding of the Section is that in absence of compliance with the said Section the purported affidavit cannot be taken into consideration. There is no evidence in support of the summon. In the instant case failure to comply with Section 5 of the Oaths and Statutory Declarations Act is fatal to the applicant’s application. The summons is not supported by any affidavit and is of no evidential value. It is in such circumstance incompetent as there is no affidavit in support. The submissions by Mr. Murango Mwenda, learned Counsel for the applicant are based on non-existing affidavit is evidence from bar and the court cannot rely on the same. On this ground I find the applicant’s application to be without merits and incompetent. The respondents have demonstrated the applicant’s application to be incompetent.’’
16.On whether the omission of date of commissioning in the jurat of the affidavit was fatal and could not be cured by Article 159 of the Constitution, I am guided by the Supreme Court in Konchellah v Sunkuli & 2 others [2018] KESC 58 (KLR) cited above. In the instant case, the affidavit was indicated as commissioned by Sambu Isaac, Commissioner of Oaths, based at Eldoret, and signed by the commissioner and deponent but lacked date contrary to the provisions of the Oaths and Statutory Declarations Act. The court is bound by the decisions of the Supreme Court and in this case Konchellah v Sunkuli & 2 others [2018] KESC 58 (KLR). The court finds the supporting affidavit defective for lack of date in the jurat. The commissioner of oaths did not date the affidavit. The application lacks evidence in support, the affidavit having been declared incompetent. The role of the court is to dispense justice, and before the court is an unsupported application, the affidavit having been held as defective. I find this is a litigation error of which the court has held that any prejudice suffered by the other party is curable by costs. Justice Prof Sifuna faced by a similar issue in Simba v Tulu (Civil Case E015 of 2024) [2025] KEHC 14130 (KLR) (Civ) (8 October 2025) (Ruling) struck out offending document and allowed filing of a fresh affidavit as follows- ‘For those reasons, I hereby strike out the Verifying Affidavit on record; but grant to the Plaintiff leave to file a compliant one. Afterall, as I have already stated in this ruling, the mere fact that a Verifying affidavit is defective, does not render the entire suit defective. In any case the Defendant has in this Application only attacked the Verifying affidavit, and not the Plaint.10. The Defendant’s Application therefore fails and is hereby dismissed. But he is awarded the costs of the Application for reason of his partial success on the Application. i.e. on the striking out of the said Affidavit. The costs are hereby assessed at Ksh 10,000=. 12. The Plaintiff is further directed to within seven (7) days from the date of this ruling, pay the said costs as well as file the new Verifying Affidavit.13. It is so ordered.’’ I fully adopt the foregoing decision to apply in the instant case and strike out the incompetent affidavit for non-compliance with the provisions of the Oaths and Statutory Declarations Act. I further award throw away costs to the respondent for Kshs. 10,000 (ten thousand) and the applicant is directed to within (7) days from the date of this ruling, pay the said costs to the respondent as well as file a compliant Affidavit in support of the application dated 8th August 2025. Interim orders in place extended for 7 days and in default of compliance with costs and filing of the compliant affidavit to lapse.
17.It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 23RD JANUARY, 2026.J.W. KELI,JUDGE.IN THE PRESENCE OF:Court Assistant: OtienoClaimant - Otieno h/b Arwaapplicant/ Respondent- Wambani h/b Kitiwa