Hume v Gathuku (Employment and Labour Relations Appeal E208 of 2023) [2025] KEELRC 135 (KLR)
The bottom line
#The High Court paused enforcement of a Kshs. 505,000 judgment against Agathe Marie Hume until her appeal is heard, on condition she deposits the money in court within 30 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether substantial loss may result to the Appellant unless stay of execution is granted
- 2.Whether the application was made without unreasonable delay
- 3.Whether the Appellant has given/tendered security for the due performance of the decree
Key legal issues
#Substantial loss
Although the Appellant did not fully illustrate substantial loss, execution before the appeal is determined would be prejudicial if she succeeds, and her lack of knowledge of the Respondent's means to repay justified a stay in the interest of justice.
The court acknowledged the Appellant had not clearly illustrated substantial loss but held that since the application was filed together with the Memorandum of Appeal, executing the decree before the appeal is heard would render the appeal nugatory. The Appellant's averment that she did not know the Respondent's means and assets and ability to repay tipped the discretion in favour of a stay.
Unreasonable delay
Filing the application less than a month after judgment was reasonable delay.
The Respondent argued the application was made more than 30 days after judgment. The court found that judgment was delivered on 18th September and the application dated 16th October was filed in less than a month, a period it considered reasonable in all circumstances.
Security for costs
The Appellant having not submitted on security, compliance with security was made a condition for the stay, by ordering deposit of the decretal sum in court.
Security is one of the statutory requirements under Order 42 Rule 6. The Appellant did not address it in submissions, so the court built it into the stay as a condition, ordering deposit of Kshs. 505,000/= within 30 days, failing which the stay lapses by operation of the condition.
Legal principles established
#- An applicant for stay of execution under Order 42 Rule 6 must show substantial loss, that the application was made without unreasonable delay, and must furnish security as the court orders.
- Mere execution or imminent execution does not of itself constitute substantial loss; the applicant must establish other factors showing execution will irreparably affect the essential core of the applicant as a successful party in the appeal.
Court orders
#- 1.The Appellant is ordered to deposit the decretal sum of Kshs. 505,000/= in Court within 30 days of the ruling as a condition for stay of execution pending the hearing and determination of the appeal
- 2.Mention on 24th February, 2025 to confirm compliance and issue directions on hearing and disposal of the appeal
- 3.Costs shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Milimani Commercial Courts
- Not stated
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Applicant has therefore met the conditions for grant of the orders of stay.
The application is therefore found with merit and is hereby allowed in the following terms: -
The Appellant is ordered to deposit the decretal sum of Kshs. 505,000/= in Court within 30 days of this ruling as condition for stay of execution pending the hearing and the determination of the appeal
It would be in the interest of justice to stay the execution of the judgment at the lower court until the issues the Appellant has raised in her appeal are ventilated.
Costs shall be in the cause.
Issues in the judgment
#Typographical discrepancy in the date of the lower court judgment - rendered as 2013 in one place and 2023 elsewhere
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hume v Gathuku (Employment and Labour Relations Appeal E208 of 2023) [2025] KEELRC 135 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 16th October, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/135/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.