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ELRCPartially AllowedCause No E942 of 2021· [2025] KEELRC 1026 (KLR)

Mathenge v DLR Group Africa Limited (Cause E942 of 2021) [2025] KEELRC 1026 (KLR)

Employment and Labour Relations Court
2 April 2025
2,191 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ELRC ruling by B. O. M. Manani, J deals with a motion by the Respondent seeking stay of execution of a judgment delivered on 2nd May 2024, in which the court had dismissed the Claimant's claim for unfair termination but ordered the Respondent to pay Ksh. 10,333,737.40 in outstanding salary, leave commutation and severance pay. Both parties filed separate appeals. The Respondent, apprehensive that execution would render its appeal nugatory because the Claimant's whereabouts and means were unknown, sought stay pending appeal and offered a bank guarantee for part of the decretal sum. The Claimant opposed, invoking his right to enjoy the fruits of judgment and contending the Respondent had not met the Order 42 rule 6(2) conditions. The court applied the three conditions. On substantial loss, applying Antoine Ndiaye v African Virtual University, it held that in money decrees substantial loss lies in the decree holder's inability to refund, and since an individual's means are within his special knowledge, section 112 of the Evidence Act shifted the evidential burden to the Claimant, who merely asserted but never disclosed his means. On security, the court declined the Respondent's partial bank guarantee and instead directed deposit of the entire decretal sum in a joint interest-earning account in the names of both parties' advocates within 45 days, failing which the stay lapses automatically. The delay of approximately two months was held not unreasonable, relying on Kepha Moreno Bosire v Titus Naikuni. The application was allowed, with costs of the application nonetheless granted to the Claimant.

Key legal issues

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01

Substantial loss in a money decree

Holding

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

Reasoning

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.

p. 4
02

Security for the performance of the decree

Holding

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

Reasoning

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.

p. 4
03

Whether the application was filed timeously

Holding

A delay of approximately two months in filing the stay application was not unreasonable

Reasoning

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).

p. 4

Legal principles established

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  • 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

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  1. 1.Stay of execution of the court's judgment delivered on 2nd May 2024 granted pending determination of the Respondent's appeal
  2. 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. 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. 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. 5.Costs of the application granted to the Claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
  • Evidence Actsection 112
  • Evidence Actsection 107 (1)
  • ELRC Procedure RulesRule 28 (3)

Cases cited (4)

  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • John Nduba v African Medical and Research Foundation (Amref Health Africa)
    [2021] eKLR
  • Proline Supaquick Limited v Kenol Kobil Plc Formerly Known as Kenya Oil Limited
    [2020] eKLR
  • Kepha Moreno Bosire v Titus Naikuni & another
    [2020] eKLR
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

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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, "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.