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ELRCAllowedNot stated in the judgment (application dated 16th October, 2023)

Hume v Gathuku (Employment and Labour Relations Appeal E208 of 2023) [2025] KEELRC 135 (KLR)

High Court of Kenya (Appeals Division)
24 January 2025
1,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Appellant, Agathe Marie Hume, moved the High Court (Appeals Division) by application dated 16th October 2023 under Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking stay of execution of a judgment of the Chief Magistrate's Court, Milimani (Hon. Lucy NJORA, CM) delivered on 18th September 2023, pending the hearing of her appeal. She averred the appeal had a high chance of success, execution was imminent following the Respondent's letter of 9th October 2023 applying for a decree, and she did not know the Respondent's means or ability to refund the decretal sum if the appeal succeeded. The Respondent opposed, arguing unreasonable delay of over 30 days, and that the application was intended to deny her the fruits of a lawful judgment. The court set out the three Order 42 Rule 6(2) conditions, applying Joseph Odide Walome v David Mbadi Akello [2022] eKLR and James Wangalwa & Anor v Agnes Naliaka Cheseto [2012] eKLR. Though the Appellant had not fully illustrated substantial loss, the court found execution before the appeal was determined would be prejudicial and render the appeal nugatory; the delay of less than a month was reasonable; and since security was not addressed in submissions, the court imposed it as a condition. The application was allowed on 24th January 2025: the Appellant to deposit Kshs. 505,000/= in court within 30 days, mention on 24th February 2025, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether substantial loss may result to the Appellant unless stay of execution is granted
  2. 2.Whether the application was made without unreasonable delay
  3. 3.Whether the Appellant has given/tendered security for the due performance of the decree

Key legal issues

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01

Substantial loss

Holding

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.

Reasoning

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.

p. 3
02

Unreasonable delay

Holding

Filing the application less than a month after judgment was reasonable delay.

Reasoning

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.

p. 3
03

Security for costs

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Mention on 24th February, 2025 to confirm compliance and issue directions on hearing and disposal of the appeal
  3. 3.Costs shall be in the cause

The bench

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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

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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.
p. 3Conclusion on the statutory conditions for stay
The application is therefore found with merit and is hereby allowed in the following terms: -
p. 3Disposition
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
p. 3Final orders - conditional stay
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.
p. 3Interest of justice / nugatory appeal
Costs shall be in the cause.
p. 3Costs

Issues in the judgment

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minor

Typographical discrepancy in the date of the lower court judgment - rendered as 2013 in one place and 2023 elsewhere

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, "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.