Joseph Kairu Mutahi v British Army Training Unit Kenya [2018] KEELRC 1875 (KLR)
The bottom line
#A Kenyan court paused enforcement of a nearly KShs 3 million judgment, but only after the employer agreed to deposit half the money as security.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought without unreasonable delay
The application was not delayed; it was filed before the expiry of the period given for payment of the decretal sum, and a notice of appeal was filed on time.
The court considered the Claimant's contention that filing on the last day was inordinate delay, relying on authority that even one day's delay may be unreasonable depending on circumstances. However, since the judgment gave time for payment and the Respondent moved before that period expired and filed its notice of appeal on time, the conduct did not amount to indolence.
Whether the applicant demonstrated substantial loss
Substantial loss was demonstrated because the inability to recover the decretal sum would result in substantial loss for whichever party was aggrieved; the sum was substantial and either party could end up holding a paper decree.
The court weighed the Respondent's apprehension that payment out would render a successful appeal nugatory against the Claimant's fear that the foreign Respondent might relocate, leaving him with a decree costly to execute abroad. It found the sum of nearly Kshs. 3 million to be a tidy sum and held that inability to recover it for either party would amount to substantial loss.
Whether security for the due performance of the decree had been offered
The Respondent offered security in word and willingness to abide by the court's orders; the court exercised its discretion to order a deposit of half the decretal sum as security.
The court held that Order 42 leaves the question of security to the court's discretion. The Respondent, a foreign entity, offered to furnish security and abide by any order. Balancing the parties' competing apprehensions, the court ordered deposit of half the decretal sum in a joint interest-earning account within 21 days.
Whether the novelty of the intended appeal's points justified a stay
Novelty alone is not sufficient cause for stay; the applicant must go beyond novelty.
The Respondent argued the intended appeal raised novel questions of law concerning non-disclosure of identities of sexual harassment complainants. The court, applying Ochieng J.'s decision in Equitorial Commercial Bank Ltd & 2 Others v Retreat Villas Limited, held that novelty may found leave to appeal but is not of itself sufficient cause to justify stay.
Legal principles established
#- Novelty of a point of law on appeal is not of itself sufficient cause to justify a stay of execution
- Order 42 does not by itself require the furnishing of security; it is the court that has the discretion to order a party to furnish security
- In some instances even a delay of one day may be inordinate or unreasonable
Court orders
#- 1.Stay of execution of the judgment of Ongaya J. of 15th December 2017 granted
- 2.Deposit of half the decretal sum in an interest-earning account in the joint names of the advocates for the parties within 21 days
- 3.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court (Ongaya J.)
- Jurisdiction invoked
- Inherent discretion over stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules, invoked by the parties
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwadzoya v United States International University – Africa & another[2026] KEELRC 2559 (KLR)23 Sept 2026
- Okach v Owuor[2023] KEELC 17663 (KLR)24 May 2023applied
Cite this brief
#Cite this brief
Caselaw, "Joseph Kairu Mutahi v British Army Training Unit Kenya [2018] KEELRC 1875 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1875/eng@2018-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.