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Court of AppealPartially AllowedNakuru COACA No. E197 of 2025

Safaricom PLC v Mabatuk (Civil Appeal (Application) E197 of 2025) [2026] KECA 735 (KLR)

Court of Appeal
17 April 2026
3,792 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Safaricom won a stay of a Kshs 5.6 million unfair termination award after the Court of Appeal found the employee could not complain about late service while skipping his own filing duties.

What this practically means

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Executive summary

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This is a consolidated interlocutory ruling of the Court of Appeal at Nakuru (Mativo, Gachoka and Kairaria, JJA) in an employment appeal by Safaricom Plc against a judgment of the ELRC at Nakuru awarding Wyclifie Mabatuk Kshs. 5,624,548.60 for unfair termination, plus costs and interest at 14% per annum. Two applications were heard together: the appellant's notice of motion dated 11th November 2025 seeking stay of execution and stay of further proceedings pending appeal, and the respondent's notice of motion dated 9th December 2025 seeking to strike out the record of appeal for service out of time under rules 86 and 92(1) of the Court of Appeal Rules. On the striking-out application, the Court held that rule 92(1) requires service only on a respondent who has complied with rule 81 (notice of address for service). The respondent admitted he had not complied with rule 81, and the rules must be read together; a party cannot blow hot and cold. Applying the clean-hands doctrine and its own precedent in Imwatok, the Court dismissed the striking-out application, with each party bearing its own costs. On stay, applying the settled rule 5(2)(b) twin test, the Court found the nine grounds of appeal were not frivolous, hence arguable. On the nugatory limb, the respondent's move to tax his bill of costs evidenced imminent execution, and the evidential burden shifted to him to show ability to refund the decretal sum once financial inability was raised; he did not displace it. Both limbs satisfied, the Court stayed execution of the judgment and further proceedings in the ELRC pending determination of Civil Appeal No. E197 of 2025, with costs of the stay application abiding the appeal. The substantive appeal remains pending; this ruling does not disturb the decision of the ELRC.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the record of appeal should be struck out for failure to serve it within the seven-day period prescribed by rule 92(1) of the Court of Appeal Rules, where the respondent himself had not complied with rule 81 on filing a notice of address for service
  2. 2.Whether the appellant demonstrated an arguable appeal for purposes of a stay of execution under rule 5(2)(b)
  3. 3.Whether the appeal would be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Whether an appeal can be struck out under rules 86 and 92(1) where the respondent has not complied with rule 81

Holding

No. Rule 92(1) applies only to respondents who have complied with rule 81; the Court must read the rules together, not in isolation, and a respondent in default of rule 81 cannot rely on rule 92 to strike out an appeal.

Reasoning

The Court read rules 77, 79, 81, 86 and 92(1) of the Court of Appeal Rules together. Rule 92(1) by its express language requires service on each respondent 'who has complied with the requirements of rule 81'. Since the respondent admitted not filing a notice of address for service within 14 days, he could not invoke rule 92(1) as the basis for striking out. He who seeks equity must come with clean hands; the respondent was himself in default of a mandatory provision. The Court applied its earlier decision in Imwatok (MCA) vs. Nairobi City County, where a striking-out application failed on identical reasoning.

p. 5
02

Whether the appeal is arguable

Holding

Yes. Nine grounds disputing the trial court's findings were set out elaborately and were not frivolous on their face.

Reasoning

Applying the settled test that an arguable appeal need not necessarily succeed but must not be frivolous, the Court examined the memorandum of appeal dated 7th November 2025 raising nine grounds against the trial court's findings on unfair termination. Those grounds were elaborately set out and not frivolous on the face of the record, satisfying the first limb. The Court expressly reserved the merits for the bench hearing the substantive appeal.

p. 6
03

Whether the appeal would be rendered nugatory if stay is refused

Holding

Yes. The respondent was proceeding to tax his bill of costs as a prelude to execution, and there was no proof he could refund the decretal sum if the appeal succeeded.

Reasoning

Following Kenya Shell Limited vs. Benjamin Karuga Kibiru, the Court considered whether refusal of stay would render the appeal nugatory. The appellant showed the respondent had filed a bill of costs and secured a taxation date, evidencing imminent execution. The respondent's own trial witness statement attested to financial difficulty. Citing National Industrial Credit Bank vs. Aquinas Francis Wasike, the Court held the evidential burden shifted to the respondent to demonstrate his resources once inability to repay was raised; he did not deny his trial testimony of financial hardship nor show his circumstances had improved. Both limbs having been satisfied, stay was granted.

p. 7

Legal principles established

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  • Rule 92(1) requires service of the record of appeal within seven days only on a respondent who has complied with rule 81; a respondent who has not filed a notice of address for service under rule 81 cannot invoke rule 92(1) and rule 86 to strike out an appeal for late service.
  • Once an applicant for stay expresses that a respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to show what resources he has.

Court orders

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  1. 1.The respondent's Notice of Motion dated 9th December 2025 seeking to strike out the record of appeal is dismissed with each party bearing its own costs
  2. 2.A stay of execution of the judgment dated 26th September 2025 and further proceedings in respect of Nakuru ELRC Cause No. E047 of 2023 is granted pending the hearing and determination of Civil Appeal No. E197 of 2025
  3. 3.The costs of the stay application shall abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
Employment and Labour Relations Court at Nakuru
ELRC No. Cause E047 of 2023
Jurisdiction invoked
rule 5(2)(b) of the Court of Appeal Rules (stay pending appeal); rules 81, 86 and 92(1) of the Court of Appeal Rules (striking out); Article 159(2)(d) of the Constitution invoked by the appellant

Relief refused

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Respondent's application to strike out the record of appeal for service out of time

The respondent had himself failed to comply with rule 81 by filing a notice of address for service, and rule 92(1) requires service on a party who has complied with rule 81; he approached the Court with unclean hands

p. 6

Costs

The application to strike out the record of appeal was dismissed with each party bearing its own costs; the costs of the stay application shall abide the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, and for avoidance of doubt, the respondent’s Notice of Motion dated 9th December 2025 seeking to strike out the record of appeal is hereby dismissed with each party bearing its own costs.
p. 7Disposition - striking out application
The appellant’s Notice of Motion dated 11th November 2025 for stay of execution is allowed with costs abiding the outcome of the appeal.
p. 7Disposition - stay of execution granted
A party cannot blow hot and cold at the same time as the respondent is purporting to do. If the respondent did not comply with rule 81, it cannot rely on rule 92 and then invoke Rule 86 to strike out the appeal.
p. 5Reading rules 81 and 92 together
It is our humble view that from the facts arising, the respondent approached this Court with unclean hands.
p. 6Clean hands doctrine
Once an applicant expresses that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge
p. 7Shift of evidential burden on nugatory limb
Having satisfied both limbs, we grant the appellant a stay of execution of the judgment dated 26th September 2025 and further proceedings in respect to Nakuru ELRC Cause No. E047 of 2023 pending the hearing and determination of Civil Appeal No. E197 of 2025.
p. 7Stay orders issued

Issues in the judgment

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minor

Paragraph 13 states the appellant's written submissions and case digest were 'dated 9th December 2025 regarding his application for stay', yet the same paragraph says the appellant was represented by counsel while the affidavit is deposed by 'Daniel Ndaba, the appellant’s legal counsel'; the judgment inconsistently attributes documents filed by the corporate appellant to a person ('his application for stay') in places and to the company in others.

minor

The judgment describes the ruling as consolidating two applications but paragraph 1 refers to 'two applications filed by the parties' while describing the substantive appeal as Nakuru COACA No. E197 of 2025 in one place and 'Civil Appeal No. E197 of 2025' in the disposition, using inconsistent appeal numbering.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Safaricom PLC v Mabatuk (Civil Appeal (Application) E197 of 2025) [2026] KECA 735 (KLR)", Case Analysis (2026). Nakuru COACA No. E197 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/735/eng@2026-04-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.