https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1403

Brinks Security Services Limited v Mudaki & another (Appeal E294 of 2024) [2026] KEELRC 1403 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1403 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E294 of 2024 JW Keli, J May 15, 2026 Between Brinks Security Services Limited Appellant and Patrick A Mudaki 1st Respondent William Elijah Kimondo Nderitu 2nd Respondent (Being an Appeal from the Judgment and Decree of the Hon. P.K. Rotich (SPM) delivered on 23rd January 2024 in Nairobi MCLRC No. 229 of 2019) Ruling (On application by way of Notice of Motions dated 23rd December 2025 and 17th January 2026) 1.The respondents, following dismissal of the appeal by the Court, filed an application by way of Notice of Motion dated 23rd December, 2025 for orders:-1)That this Honorable Court be pleased to issue orders directing ABSA Bank Queensway Branch to release the sum of Kshs. 2,634,930.83 (Kenya Shillings Two Million six Hundred Thirty four Thousand Nine Hundred thirty and eighty three Cents) together with all interest accrued thereon since 7th November 2024 from the joint account number 2052xxxxxx fixed in GL account no. 111xxxxxx held in the names of Onenga C O and Okumu A A to the Respondent's advocates, Omongo Gatune & Co. Advocates.2)That the costs of this application be provided for. 2.Grounds of the application1.That judgment was entered in favour of the Respondent by the trial court in CMEL No. 229 OF 2019 awarding the Respondents terminal dues following termination from the Appellant's service on 30th August 2018.2.That pursuant to the Appellant's appeal to this Honourable Court, the Appellant was ordered to deposit the entire decretal sum in a joint interest-earning account in the names of advocates for both parties as security pending hearing and determination of the appeal.3.That in compliance with the said order, the Appellant deposited a sum of Kshs. 2,928,793.14 in a joint account number 2052xxxxxx fixed in GL account no.a.111xxxxxx at ABSA Bank Queensway branch in the names of Onenga Co & Okumu A A in November 2024.4.That this Honourable Court delivered its judgment on 10th December 2025, allowing the appeal by reduction of the compensation from maximum 12 months to 6 months gross salary and leave days for the 1st Respondent reduced to 18 months.5.That this Honourable Court having determined the appeal is now functus officio.6.That the purpose of the stay is now spent.7.That the Respondents are entitled to receive:Kshs. 2,467,758.22 being the principal sum awarded (1,278,787.16 + 1,188,971.06)Kshs. 167,172.61 being costs in the trial courtTotal: Kshs. 2,634,930.83 together with all interest accrued thereon since November 2024.8.That this court, having previously ordered the deposit of these funds, has proper authority to now order their release. 3.The application was opposed by the appellant through a replying affidavit of Martin J Miyago dated 10th January 2026 as follows-That I have read and understood the Applicant's Notice of Motion Application dated the 23rd December 2025 (hereinafter 'the Application') and I swear this Affidavit to strenuously oppose the Application. That Judgment was entered in the suit herein on the 10th December 2025 in part favour of the Respondents. (Annexed herein and marked 'BSSL 1' is a copy of the said judgment). That the Applicant being dissatisfied with the judgment above stated, subsequently filed an Appeal in the Nairobi Court of Appeal Civil Appeal Number E088 of 2026 - Brinks Security Services Limited v Patrick A Mudaki and William Elijah Kimondo Nderitu. (Annexed herein and marked 'BSSL 2' is a copy of the said Notice of Appeal, Memorandum of Appeal and filing receipts). That the above stated Appeal is pending hearing and determination. That the Respondent have proceeded to file a Notice of Motion Application seeking release of Kshs.2,634,930.83/= held in a joint account at ABSA Bank Kenya PLC - a/c no. 2052xxxxxx held by the Applicant and Respondent's Advocates. (Annexed herein and marked 'BSSL 3' is a copy of the Application). That Costs awarded to the Applicant are yet to be assessed and determined by the court, for deduction from any amount due to the Respondents, thus any decree issued for release of funds as prayed by the Respondents will be incomplete and prejudicial to the Applicant. That The Appeal being pending in the Court of Appeal, it is only fair and just that stay execution of judgment and decree in the suit herein to issue as parties await final determination of the issues raised in the Appeal arising from the judgment in the suit herein. That We pray the Application herewith be heard urgently and stay orders granted, as the Applicant herein risks suffering irreparably should the orders sought not be granted. That this Application has been made without any unreasonable delay. That it is in the best interest of justice and all fairness that this application be allowed. 2nd Application 4.The appellant in response to the above application for release of the decretal sum filed an Application vide Notice of Motion dated 17th January 2026 seeking for the following orders:-a.The Honourable Court be pleased to certify this Application urgent and hear it ex parte at the first instance for the purposes granting this prayer and prayer 2.b.An order be issued for stay of execution of the Judgment delivered on the 10th December 2025 in the suit herein pending the hearing And determinAtion of this Application.c.An order be issued for stay of execution of the Judgment delivered on the 10th December 2025 in the suit herein pending the hearing and determination of Nairobi Court of Appeal Civil Appeal Number E088 of 2026-Brinks Security Services Limited v Patrick A Mudaki and William Elijah Kimondo Nderitu.d.The Applicant be awarded costs of this Application. Grounds of the application 5.Judgment was entered in the suit herein on the 10th December 2025 in part favour of the Respondents. 6.The Applicant being dissatisfied with the judgment above stated, subsequently filed an Appeal in the Nairobi Court of Appeal Civil Appeal Number E088 of 2026 Brinks Security Services Limited v Patrick A Mudaki and William Elijah Kimondo Nderitu. The above stated Appeal is pending hearing and determination. 7.The Respondent have proceeded to file a Notice of Motion Application dated 23rd December 2025, seeking release of Kshs.2,634,930.83/= held in a joint account at ABSA Bank Kenya PLC - a/c no. 2052xxxxxx held by the Applicant and Respondent's Advocates. 8.Costs awarded to the Applicant are yet to be assessed and determined by the court, for deduction from any amount due to the Respondents, thus any decree issued for release of funds will be incomplete and prejudicial to the Applicant. 9.The Appeal being pending in the Court of Appeal, it is only fair and just that stay execution of judgment and decree in the suit herein to issue as parties await final determination of the issues raised in the Appeal arising from the judgment in the suit herein. 10.We pray the Application herewith be heard urgently and stay orders granted, as the Applicant herein risks suffering irreparably should the orders sought not be granted. That this Application has been made without any unreasonable delay. That it is in the best interest of Justice and all fairness that this application be allowed. 11.The application was opposed by the appellant/respondent vide replying affidavit of Patrick Mudaki dated 26th February 2026 who averred as follows-a.That I am the 1st Respondent herein and therefore competent to swear this Affidavit in opposition to the Applicant's Notice of Motion dated 10th January 2026 seeking stay of execution pending hearing and determination of an intended second appeal. I have read the said application and supporting affidavit and respond thereto as follows. The application and purported appeal was filed only after we filed an application dated 25th December 2025 seeking release of the decretal funds.b.That the said application and appeal is an afterthought calculated purely to delay settlement of sums lawfully awarded to us. the Applicant has not demonstrated that the intended appeal would be rendered nugatory if stay is not granted. The Applicant has not demonstrated what substantial loss it stands to suffer if the decretal sum is released. The purpose of the deposit was to secure the decretal amount pending the determination of the appeal before this Court. This Honourable Court delivered its Judgment on 10th December 2025 thereby conclusively determining the appeal. The security having served its purpose, there is no legal basis to continue withholding the funds.c)That instead of promptly seeking stay before the Court of Appeal, the Applicant waited until we sought release of funds and only then rushed to file the present application. The present application is therefore brought in bad faith and is intended to obstruct and delay justice.d)That we were unfairly terminated from employment and have litigated this matter since 2019. The continued withholding of the decretal amount causes me serious financial hardship. I am entitled to enjoy the fruits of my judgment without further delay. That granting the orders sought would amount to punishing a successful litigant. The Applicant's application dated 10th January 2026 is frivolous, misconceived and an abuse of the court process. 12.The respondent filed a further affidavit dated 13th February 2026 in response to the replying affidavit of the appellant as follows: -I verily state that the purported appeal was filed after the present application for release of funds had already been lodged and served.That the said appeal is clearly an afterthought calculated to frustrate and delay the Respondents from enjoying the fruits of their judgment.That the mere filing of a Notice of Appeal or an Appeal to the Court of Appeal does not operate as a stay of execution.That no order of stay has been issued either by this Honourable Court or by the Court of Appeal restraining release of the deposited funds.That the decretal sum was deposited pursuant to this Court's conditional stay pending determination of the appeal before this Court.That this Honourable Court delivered its Judgment on 10th December 2025, thereby conclusively determining the appeal before it.That the purpose for which the funds were deposited - namely security pending determination of the appeal - has now been fully accomplished and spent. That there exists no lawful basis to continue holding the Respondents' money in the joint account.That the Respondent alleges that costs have not been taxed.That no Bill of Costs has been filed by the Appellant/Respondent to date.That the failure to file or prosecute a Bill of Costs cannot be used as a shield to deny the Respondents access to the principal decretal sum.That costs, if any, are ascertainable through taxation and cannot operate to freeze the entire decretal amount indefinitely.That the Respondents cannot be punished for the Appellant's own inaction in failing to file its Bill of Costs.That a second appeal does not automatically suspend or nullify a lawful decree of this Court.That absent a lawful order of stay from a competent court, the Respondents remain entitled to immediate release of the decretal amount.That the Respondent's averments are a transparent attempt to re-litigate matters already determined and to perpetuate delay.That it is a settled principle of law that a successful litigant is entitled to enjoy the fruits of judgment.That continued retention of the decretal sum in the joint account amounts to unjust enrichment of the Appellant and unlawful deprivation of the Respondents' property.That this Honourable Court is functus officio regarding the merits of the appeal and only remains seized of jurisdiction to give effect to its decree.That it is therefore just and equitable that the deposited sum together with accrued interest be released to the Respondents forthwith.That the Replying Affidavit dated 10th January 2026 is devoid of merit and raises no lawful ground to deny the orders sought. Decision 13.The court consolidated the applications to be determined under this ruling. The applications were canvassed through written submissions. Issues for determination 14.From the two applications and submissions by the parties, the court discerned the issues for determination were-1.whether the court had jurisdiction to determine the application for stay of its decision post judgment.2.whether the application for stay was merited. Whether the court had jurisdiction to determine the application for stay of its decision post the judgment 15.Rule 73 of the Court procedural Rules(2024) states-‘73. Execution and warrants(1)The Registrar shall issue an order in execution of a decree.(2)Rules on execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules.’ 16.The relevant Civil Procedure Rule is Order 42 Rule 6, to wit –‘6.Stay in case of appeal [Order 42, rule 6](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.(3)Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.’The instant application for stay of execution was filed upon delivery of the Judgment by the court on the 10th December 2025. That court thus has jurisdiction to consider the application for a stay of its decision under Rule 73 of the Court Rules (2024). Whether the application for stay of execution was merited 17.Rule 73 of the Employment and Labour Relations Court Rules of 2024 provides as follows: ‘(2)Rules on execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules.’’ The relevant rule under the Civil Procedure Rules is Order 42 Rule 6 to wit-‘6.Stay in case of appeal [Order 42, rule 6](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.’’ 18.The court established that there was no inordinate delay in filing the application. The impugned decision was dated 10th December 2025 , and the Notice of Appeal was filed on the 10th December 2025. The instant application was filed 18 February 2026. The delay was not justified, but nevertheless, the court found the delay of approximately 2 months was not inordinate. The court found the Notice of Appeal was lodged same day an indication of intention to appeal the decision. 19.On substantial loss, this being a money decree, the loss is disclosed as the respondent did not demonstrate capacity to repay the money in the event of a successful appeal by filing an affidavit of means. 20.On the issue of security, which is a mandatory condition under section 42(6) of the Civil Procedure Rules. The appellant had deposited the decretal sum in joint interest account held between advocates for the parties and the money continues to attract interest. 21.The court then finds that the application is merited and meets the conditions for the grant of a stay of execution under Order 42, Rule 6 of the Civil Procedure Rules. The court is guided by decision in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal gave guidance on how a Court should exercise discretion in an application for a stay of execution, that: -‘If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.” The application is merited, the applicant having complied with the provisions of Order 42 Rule 6 of the Civil Procedure Rules and, in order to prevent the appeal, if successful, from being nugatory. The court is to exercise discretion not to defeat the intended appeal. I allow the application to stay the execution of my decision and further stay the release of funds pending a hearing and determination of the intended appeal. The court finds no prejudice to the Applicants/ Respondents as the decretal money is secured and earning interest. 22.In the upshot, the Application dated 23rd December 2025 was disallowed. The Application dated 17th January 2026 was allowed. Any prejudice to the respondent /judgment holder is covered by costs which are awarded to the Respondent/judgment holder. 23.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELI,JUDGE.In the Presence of:Court Assistant: OtienoRespondent: Ms Kamau holding brief OnengaApplicant Absent