https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1262

Mota-Engil Engenharia Construcao Africa v Karu (Civil Application E699 of 2025) [2026] KECA 1262 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1262 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E699 of 2025 Katwa Kigen, SG Kairu & P Nyamweya, JJA July 3, 2026 Between Mota-Engil Engenharia Construcao Africa Applicant and Terry Njeri Karu Respondent (Being an application for stay of execution and stay of proceedings pending the hearing and determination of the intended appeal against the Ruling and Order of the Employment and Labour Relations Court at Nairobi (A. Nzei, J.) dated 31st October 2025 in ELRC Cause No. E714 of 2025) Ruling 1.The respondent, Terry Kau, instituted suit before the Employment and Labour Relations Court (ELRC) at Nairobi against the applicant Mota-Engil Engenharia E Construcao Africa asserting that she was unfairly, unlawfully and constructively dismissed from employment. She sought, amongst other reliefs, an award of USD58, 606.31 as compensation; 12 months’ salary compensation for unfair dismissal; and general damages. 2.Alongside the claim before the ELRC, the respondent filed an application seeking orders for the suit to be heard on priority basis; an order to restrain the applicant from moving its operations outside the jurisdiction of Kenya; an order that USD58, 606.31 “being the net annual salary that had been offered to her” be deposited in court as security for due satisfaction of any judgment that may be entered in her favour. 3.In a ruling delivered on 31st October 2025, the ELRC allowed the respondent’s prayer for the applicant to furnish security but declined the prayer to restrain the applicant from moving its operations outside jurisdiction of Kenya. In that regard, the applicant was ordered to deposit into court within 21 days the equivalent of the respondent’s 12 months gross salary. The court also ordered that the hearing of the suit be fast tracked for hearing. 4.The applicant is aggrieved by the order directing it to furnish security. It filed a Notice of Appeal dated 4th November 2025 on the strength of which it moved this Court by its application dated 21st November 2025 made under Rule 5(2)(b) of the Court of Appeal Rules. In that application, the subject of this ruling, the applicant seeks two prayers. The first is an order to stay and/or suspend the order requiring it to deposit the equivalent of 12 months’ salary. The second prayer is for stay of further proceedings before the ELRC. 5.We heard the application on 24th February 2026. There was no appearance for the applicant although notice of hearing had been served. Learned counsel Mr. J. Mutava appeared for the respondent. We have considered the application, the affidavit in support sworn by Joao Barros; the replying and further affidavits sworn by the respondent and the rival written and oral submissions by learned counsel. 6.The applicant is required to demonstrate that the intended appeal is arguable and that should the application be declined and the appeal ultimately succeeds, it will have been success in vain. See Stanley Kangethe Kinyanjui vs. Tony Ketter and 5 Others [2013] KECA 378 (KLR). 7.On the arguability limb, it is the applicant’s case that during the hearing of the intended appeal, it will demonstrate that the learned Judge of ELRC erred in importing provisions of the Civil Procedure Rules when those rules do not apply to the ELRC. It is also contended that the Judge wrongly exercised judicial discretion in granting the order for security. Conscious that "an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court, one which is not frivolous" (See Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Limited & 2 Others, Civil Application No. 124 of 2008) [2009] KECA 201(KLR), we do not think the intended appeal is frivolous. It is arguable. 8.On the nugatory aspect, it is urged that the amount the applicant has been compelled to deposit into court is not trivial but a significant cash flow burden for its ongoing operations. However, no material was placed before the Court to substantiate that claim. The applicant should perhaps be consoled that the order requires the deposit to be made into court and if the respondent’s suit before the ELRC fails, retrieval of the amount deposited should pose no difficulty. We are therefore not persuaded that the applicant has demonstrated that the appeal will be rendered nugatory. 9.In as far as the prayer for stay of proceedings is concerned this Court in the case of Waithaka vs. Tribunal appointed to investigate the conduct of the Honourable Lady Justice Lucy Njoki Waithaka & Another; Kenya Magistrates & Judges Association (Interested Party) (Civil Application 8 of 2020) [2020] KECA 571 (KLR) stated that stay of proceedings is a serious, grave and fundamental judicial action which interferes with the right of any party to conduct litigation. It impinges on the right of access to justice, right to be heard without delay and the right to a fair trial. The applicant has not demonstrated any exceptional circumstances that would warrant the grant of prayer for stay of further proceedings before the ELRC. If anything, it would be in the applicant’s interest to have the suit before the ELRC fast tracked concluded at earliest opportunity as the court ordered. 10.The application dated 21st November 2025 accordingly fails and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.S. GATEMBU KAIRU, FCIArb, CArb...........................................JUDGE OF APPEALP. NYAMWEYA.........................................JUDGE OF APPEALKATWA KIGEN.......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.