Mota-engil Engenharia Construcao Africa v Terry Njeri Karu
The bottom line
#The Court of Appeal ordered Mota-Engil to deposit 12 months' salary as security and continue facing the dismissal claim, refusing to pause the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under Rule 5(2)(b)
The intended appeal is arguable, since arguability does not require certainty of success but only that the appeal is not frivolous and should be argued fully.
The applicant contended that the ELRC Judge erred in importing Civil Procedure Rules which do not apply to the ELRC and wrongly exercised discretion in granting security. Applying the established test, the Court found these contentions raised issues fit for full argument, holding that an arguable appeal need not necessarily succeed.
Whether the appeal would be rendered nugatory if the security order is not stayed
The nugatory limb failed; no material substantiated the claimed cash flow burden, and the deposit into court is retrievable if the respondent's suit fails.
The applicant asserted the deposit of 12 months' salary was a significant cash flow burden but placed no material before the Court to substantiate the claim. Since the money would be deposited into court, retrieval upon success in the appeal or the suit would pose no difficulty, so the appeal would not be rendered nugatory.
Whether stay of further proceedings before the ELRC should be granted
Stay of proceedings was refused because no exceptional circumstances were demonstrated.
Relying on Waithaka, the Court reiterated that stay of proceedings interferes with the right to conduct litigation, access to justice, and a fair trial. The applicant showed no exceptional circumstances; indeed, a fast-tracked hearing of the ELRC suit was in the applicant's own interest.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that, if the application is declined and the appeal ultimately succeeds, it will have been rendered nugatory.
- Stay of proceedings is a grave judicial action that interferes with a party's right to conduct litigation and impinges on the right of access to justice; it is granted only in exceptional circumstances.
Court orders
#- 1.The application dated 21st November 2025 is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mota-engil Engenharia Construcao Africa v Terry Njeri Karu", Case Analysis (2026). Civil Application No. NAI. Not stated in the ruling (application dated 21st November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1262/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.