Richard Moses Wambugu v NCBA Bank Kenya PLC
The bottom line
#NCBA won a stay of execution of a Kshs.3.12 million unfair dismissal award, but only after depositing the full amount in a joint interest-earning account 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 stay of execution of the judgment and decree of 23rd October 2025 should issue pending appeal
- 2.Whether the applicant stands to suffer substantial loss if the decretal sum is paid out
- 3.Whether the application was made without unreasonable delay
- 4.What security, if any, should be furnished for due performance of the decree
Key legal issues
#Substantial loss
Substantial loss was established because the claimant did not demonstrate ability to refund the decretal sum if paid out and the appeal succeeds.
Relying on Charles Mutethia Mutea and Grace Wangechi Gikuju, the court held that loss occurs when a decretal sum is paid to a judgment creditor without means to refund it upon a successful appeal. Once the applicant raises doubt about the respondent's financial status, the evidential burden shifts to the respondent to show ability to refund. The claimant said nothing to show he was not a man of straw.
Security for due performance
The court granted a conditional stay requiring deposit of the full decretal sum in a joint interest-earning account within 30 days, failing which the stay lapses.
Order 42 Rule 6(2) obliges the court, in exercising its discretion, to secure the sanctity of the decree by ensuring the judgment debtor provides security for due performance of the decree as may ultimately be binding on him. The applicant had offered a guarantee and to abide by conditions as to security.
Filing of appeal
The appeal was deemed filed: the applicant filed both a Notice of Appeal and an appeal in the Court of Appeal.
Under Order 42 Rule 6(4), an appeal to the Court of Appeal is deemed filed when notice of appeal has been given. The applicant went further and filed Nairobi Court of Appeal Civil Appeal No. 1073 of 2025 on 4th December 2025, satisfying the requirement.
Legal principles established
#- Stay of execution pending appeal is discretionary, but the court must secure the sanctity of the decree by requiring security for due performance
- In balancing the parties' interests, the court must exercise its discretion so that a successful appeal is not rendered nugatory
- Substantial loss is established where the decree-holder lacks means to refund the decretal sum if the appeal succeeds
Court orders
#- 1.Stay of execution of the Court's decree pending hearing and determination of Nairobi Court of Appeal Civil Appeal No. 1073 of 2025, on condition that the Respondent/Applicant deposits the judgment sum of Kshs.3,120,000/= in an interest-earning bank account held jointly by Advocates for both parties within thirty (30) days of the Ruling
- 2.Failure to comply with the conditional stay order, the stay order shall automatically lapse
- 3.Costs of the application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 13 of the Employment and Labour Relations Court Act; Order 42 Rule 6 of the Civil Procedure Rules via Rule 73(2) of the ELRC (Procedure) Rules 2024
Relief refused
#Stay of taxation of costs pending inter-partes hearing
The court had already stayed taxation on 10th February 2026 and the final order addressed execution only; no separate order on taxation was made in the disposition
Costs
Costs of the application shall abide the outcome of the appeal.
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.
There will be a stay of execution of the Court's decree herein pending hearing and determination of Nairobi Court of Appeal Civil Appeal No. 1073 of 2025, but on condition that the Respondent/Applicant deposits the Judgment sum of Kshs.3,120,000/= in an interest earning bank account to be held in a reputable bank jointly by Advocates for both parties, within thirty (30) days of this Ruling.
Failure to comply with the foregoing conditional stay order, the stay order herein issued shall automatically lapse.
Costs of the application shall abide the outcome of the appeal.
In balancing the interests of both parties, the Court must exercise its discretion in a way that ensures that the intended appeal, if successful, is not rendered nugatory.
The Respondent's assertion that it stands to suffer substantial loss unless the stay sought is granted is not speculative.
Issues in the judgment
#Affidavit date precedes the motion it supports
Document marked DRAFT including signature block
Decretal sum described inconsistently as general damages and as compensation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Moses Wambugu v NCBA Bank Kenya PLC", Case Analysis (2026). Cause No. E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2766/eng@2026-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.