Mathenge v DLR Group Africa Limited (Cause E942 of 2021) [2025] KEELRC 1026 (KLR)
The bottom line
#A Kenyan employment court paused payment of a judgment, but only if the full amount is deposited in a joint bank account within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss in a money decree
Substantial loss is established where the judgment debtor shows the decree holder cannot refund the decretal sum if the appeal succeeds; the Claimant's failure to disclose his means exposed the Respondent to the risk of total loss
Relying on Antoine Ndiaye v African Virtual University, the court held that substantial loss is qualitative, not mathematical. In money decrees it is measured by the refundability of the sum paid out. Although the burden of proof ordinarily lies on the applicant, section 112 of the Evidence Act shifts the evidential burden to the decree holder whose means are within his special knowledge. The Claimant merely asserted ability to refund without disclosing his means, so the Respondent demonstrated substantial loss.
Security for the performance of the decree
The Respondent's offer of a bank guarantee for only a portion of the decretal sum was declined; the court directed deposit of the entire decretal sum in a joint interest-earning account in the names of both parties' advocates
The court retains discretion over the kind of security. Balancing the Claimant's right to enjoy the fruits of judgment against the Respondent's right to pursue its appeal, the court reasoned that a joint interest-earning account preserves both interests and prevents prejudice to either party pending the appeals.
Whether the application was filed timeously
A delay of approximately two months in filing the stay application was not unreasonable
The court accepted the Respondent's explanation, relying on Kepha Moreno Bosire v Titus Naikuni & another [2020] eKLR, where a similar stay application was allowed despite a delay of more than one month. The delay was therefore held not to disqualify the application under Order 42 rule 6(2).
Legal principles established
#- In a money decree, substantial loss lies in the inability of the decree holder to refund the decretal sum should the appeal succeed, irrespective of the amount involved
- Where an individual's means are within his special knowledge, the evidential burden of proving ability to refund a decretal sum shifts to him under section 112 of the Evidence Act
- Where there are competing interests over a decretal sum pending appeal, placing the sum in a joint interest-earning account in the names of both parties' advocates protects both sides
Court orders
#- 1.Stay of execution of the court's judgment delivered on 2nd May 2024 granted pending determination of the Respondent's appeal
- 2.The Respondent to deposit the entire decretal sum in a joint interest earning account in a reputable bank in the names of the Advocates on record for the parties within forty-five (45) days from the date of the order
- 3.The bank in which the decretal sum is to be deposited to be agreed on by the parties within seven (7) days of the order, failing which the Deputy Registrar to nominate a bank for them
- 4.Should the Respondent fail to deposit the decretal sum as ordered, the stay orders shall automatically lapse and the Claimant shall be at liberty to enforce the decree
- 5.Costs of the application granted to the Claimant
- Jurisdiction invoked
- Inherent jurisdiction of the ELRC to stay execution of its own judgment pending appeal, applying Order 42 rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathenge v DLR Group Africa Limited (Cause E942 of 2021) [2025] KEELRC 1026 (KLR)", Case Analysis (2025). Cause No E942 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1026/eng@2025-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.