https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1367

Guerra v Urysia Limited (Cause 649 of 2017) [2026] KEELRC 1367 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1367 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause 649 of 2017 JW Keli, J May 15, 2026 Between Luis Manuel Fonseca Passos Guerra Claimant and Urysia Limited Respondent Ruling 1.Further to issuance of order of stay of execution on condition of deposit of decretal sum by the Court, the judgment debtor filed a further application by way of Notice of Motion dated 1st December 2025 brought under Sections 1A and 1B of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, 2010 for orders-a.Spentb.Pending the inter partes hearing and determination of the Application herein, an order of stay do issue against the intended execution of the Judgement delivered by this Honourable Court on 23rd February 2024; and the resultant Ruling and/or Certificate of Costs in respect of Claimant’s Bill of Costs dated 19th March 2025.c.This Honourable Court be pleased to review and/or vary the orders of 14 January 2025 requiring the deposit of half of the decretal sum in a joint interest earning account by both advocates as security for the appeal within 30 days; and in place be substituted with an order directing the Respondent/Applicant to deposit in Court the Logbooks for Motor Vehicles whose value is commensurate to satisfy performance of the subject decree and cushion for inflation and interest as security for the Appeal.d.Upon grant of prayer (2) above this Honourable Court, be pleased to allow the Respondent/Applicant to deposit KES.1,000,000.00, as part of the security for the performance of the decree and/or condition for stay of the subject judgement; to Court or as the Court may direct.e.Upon grant of prayer (2) above this Honourable Court be pleased to extend the 30 days given to enable compliance with the orders. 6. The costs of this Application be provided for. Grounds of the application 2.The Honourable Court on 14th January 2025 granted a conditional stay of execution requiring the deposit of half of the decretal sum in a joint interest earning account within 30 days, which condition was not met, resulting in the lapse of the stay. 3.The Respondent made attempts to comply within the stipulated period but was unable to meet the Court’s condition, and subsequent out of Court discussions regarding stay pending appeal have not yielded any resolution. 4.The Deputy Registrar/Taxation Master is scheduled to deliver a ruling on the Party and Party Bill of Costs, after which the Claimant shall proceed with full execution. 5.The Applicant’s primary source of revenue was leasing motor vehicles on long term leases, and the subject major contract was recently terminated, the motor vehicles returned and at this point the Applicant only has the motor vehicles which are their only stock in trade. 6.The Applicant is ready and willing to furnish security for the due performance of the decree by depositing KES.1,000,000.00 in Court and offering additional security in the form of logbooks for motor vehicles valued at an amount equivalent to the decretal sum to cushion for interest and inflation. 7.This Honorable Court has discretion to review its orders in determining the amount of security, form of security, and timing for having any funds paid into Court. 8.No prejudice shall be occasioned on the Claimant/Respondent as compared to the Applicant who shall suffer destabilization or collapse of its operations whereas it has a meritable appeal. 9.Parties’ Counsel had attempted negotiations with the view of compromising the orders of the Ruling dated 14 January 2025, but they were unable to amicably do so. 10.The application as supported by the affidavit of Fiana Achieng, who urged the court to intervene by variation of the condition of security to preserve the applicant from business financial destabilization by balancing the right to appeal and the Decree Holders' right to enjoy their judgment by allowing orders sought of variation of security conditions. 11.The Decree Holder opposed the application and averred as follows- ‘That judgment was delivered on 23rd February, 2024 in my favour as the Claimant after almost 7 years since the case was filed in this Honourable Court. This Honourable Court delivered its decision holding that my termination was substantive and procedurally unfair and awarded compensation of one month salary in lieu of notice of Kshs 1,041,300.00 together with compensation pursuant to Section 49(1)(c) of the Employment Act being Kshs 12,495,60 together with interests at court rates and costs. On 23rd February, 2024 when the Judgment was delivered, the Judgment Debtor/Applicant's counsel sought for a temporary order of stay for 30 days which the Court granted. The said 30 days were to lapse on 23rd March 2024 within which the Decree Holder/ Claimant was free to proceed with Execution of the said Judgment. The 30 days already lapsed and the Decree Holder/Claimant's Counsel applied for a Decree which was granted. I have read the Judgment Debtor/Applicant's Application dated 8th April, 2024 seeking for stay of execution of the said Judgment together with the Supporting Affidavit of Fiona Achieng the Company's Legal Officer. It is important to note that the Application was filed by a new Advocate post Judgment and the said Advocate did not comply with Order 9 Rule 9 of the Civil Procedure Rules before filing the said Application. On that ground, the Application is invalid, null and void and ought to be struck out having been filed before Order 9 rule 9 was complied with. At the time of filing the said Application, the new Advocate had not filed a consent to enable them assume jurisdiction over this matter and neither did they seek a prayer in the said application. Notwithstanding the above invalidity, in response to paragraph 8 of the Supporting Affidavit, no appeal has been filed despite the Judgment Debtor having a copy of the proceedings. The Application herein is a further delay tactic to frustrate the Decree Holder from enjoying the fruits of his Judgment. In response to paragraph 9, the allegation that the Judgment Debtor/Applicant are now awaiting for certified proceedings is a further indication of deliberate delay. It is trite that certified proceedings are not a prerequisite before filing an appeal. In response to paragraph 10 and 11, the Appeal is already overtaken by events having not been filed within 60 days. There cannot therefore be an arguable appeal. In response to paragraph 11, 12, 13,14, 15 and 16, the grounds raised in the memorandum of appeal do not disclose any arguable case and no appeal will be rendered nugatory if stay is not granted. In response to paragraph 17, 18, 19 and 20, this Honourable Court gave justification as to why it awarded 12 months compensation, which is actually allowed under the Employment Act based on the circumstances of termination. In response to paragraph 30, 31 and 32, a judgment of the Court cannot be stayed on the basis of the Judgment Debtor's own claim of experiencing general business challenges. This is so especially, where it terminated the Decree Holder's employment after he had relocated to the Country, and incurred very huge expenses and has awaited for the Judgment for 7 years. The Decree Holder has indeed experience more financial challenges than the Judgment Debtor who is the sole importer and distributor of Peugeot in Kenya and the East African region. In response to paragraph 33 and 34, the Judgment Debtor offers to deposit only a guarantee for the notice pay of Kshs 1,041,300.00 to the Court. This is not reasonable security. In the event the Court was to give directions on security, this being a money decree and the Claimant having to await for 7 years, then the only fair and just direction is deposit of the full decretal amount into a joint interest earning account in the name of the Advocates. The offer of issuing a guarantee for notice pay only is evident that the Judgment Debtor is only interested in denying the Decree Holder the fruits of his Judgment. 12.The application was canvassed by way of written submissions. The applicant’s submissions 13.Whether the applicant has met the threshold to warrant granting of orders as sought? The Applicant’s financial position since the ruling has not changed. The audited statement provided substantiates that the Applicant had a negative cash flow. The Applicant has approached this Honourable Court conscious of the fact that a successful litigant is ordinarily entitled to enjoy the fruits of judgment. However, the power to grant stay exists precisely to ensure that the appellate process is not rendered illusory and that justice is achieved in substance rather than form. Under Order 42 Rule 6 of the Civil Procedure Rules, which applies equally before this Court, the central inquiry is whether execution at this stage, as articulated by the Court of Appeal in BUTT V RENT RESTRICTION TRIBUNAL [1982] KLR 4171, would occasion substantial loss, whether the application has been brought without undue delay, and whether the Applicant has acted in good faith by offering appropriate security. 14.Would execution occasion substantial loss to the applicant? 1In the present matter, the loss apprehended by the Applicant is neither speculative nor merely monetary. The Applicant is an established automotive dealer operating in an industry that has, over the recent years, undergone severe and well-documented economic disruption. It is submitted that the industry has experienced a sustained decline in new vehicle sales, rising operational costs and aggressive tax enforcement – factors which that have catalyzed insolvency procedures even in esteemed automotive dealers like CMC Motors, Mobius Motors, DT Dobie and Motorhub Cited in the case of Amal Hauliers Ltd V Abdulnasir Abukar Hassan [2017] e KLR. Against that background, the Applicant has brought forth evidence of expiry of major lease contracts which previously constituted its main source of revenue to demonstrate the origin of its constrained cash flow and working capital. Further the Applicant has detailed events as to why it remains financially vulnerable. The net effect is to show that the Applicant’s apprehension of loss is grounded in reality rather than conjecture. It is in that context that the Honorable Court is invited to consider the effect of immediate execution. In Kenya Shell Limited V Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court of Appeal held that substantial loss is the cornerstone of an application for stay and that the Court must look beyond the decree itself to the consequences of its enforcement. In this case, execution of the decree and the resultant certificate of costs shall destabilize the Applicant’s already fragile operations, undermine its standing with suppliers and/or financiers, and irreparably damage its reputation with its new strategic partners, Jeep and Citroen at a critical stage of going to market. As an employer, those consequences do not end at the balance sheet. They translate directly into threatened job losses, disruption of employment relationships, and the real possibility of downsizing, restructuring, or closure. The Applicant has taken deliberate steps to remain a going concern, including transitioning into a multi-brand dealership model to respond to the disruption from global entrants in the Kenyan market offering new value propositions and cheaper second-hand imports. On this limb the Applicant humbly submits, for the above reasons, that immediate execution would prejudice its recovery efforts, including but not limited to exposing its employees to avoidable hardship. 15.Is there real risk of futility in the appeal? The Applicant has also demonstrated that, absent stay, the intended appeal would be rendered nugatory. It is averred that the Claimant is a foreign resident who no longer resides within the jurisdiction of this Honourable Court. Should execution proceed and the decretal sums be paid out there might arise considerable complications recovering the decretal sum from him. The Claimant has also not attempted to discharge the burden to provide no tangible proof his financial status. We rely on the case of NATIONAL INDUSTRIAL CREDIT BANK LIMITED -V- AQUINAS FRANCIS WASIKE AND ANOTHER (UR) C.A. 238/2005 cited in FOCIN MOTORCYCLE CO. LIMITED V ANN WAMBUI WANGUI & ANOTHER [2018] KEHC 8358 (KLR). In RWW v EKW [2019] KEHC 6523 (KLR), the Court emphasized that the purpose of stay is to preserve the subject matter of litigation so that the appellate process remains meaningful. That purpose would be defeated if execution is allowed in circumstances where restitution is unlikely. The subject of the Appeal is that the award for unlawful termination by the Trial Court was excessive and should be reviewed. This means that in the event that the appeal succeeds it would be impossible or rather problematic and difficult to recover any portion of the decretal amount from the Claimant, the Claimant being a foreigner. We rely on TRUST BANK LIMITED & ANOTHER V INVESTECH BANK LTD & 3 OTHERS [2000] KECA 11 (KLR). On its part the Applicant is a reputable company in operation for decades with a known and permanent address (its place of business) and as such, there is whatsoever no possibility or doubt that if the appeal does not succeed it would not pay the decretal amount and the costs emanating therefrom. 16.The application is not meant to deny the fruit of judgement - The Applicant, through their Legal Officer’s Supporting Affidavit, deponed that it made attempts to comply within the stipulated period but was unable to meet the Court’s condition, as the subsequent out of Court discussions to negotiate mutually agreeable terms for stay pending appeal did not yield any resolution. The Applicant was not indolent and has premised the timing of the present application on its efforts to resolve the matter amicably rather than precipitously. Those efforts failed, not for lack of willingness on the Applicant’s part, but certain conditions were imposed which exceeded a level of liquidity the Applicant demonstrably did not possess. Indeed , on 4 December 2025, considered the Applicant’s motion ex parte and granted a stay of execution of the decree and resultant Ruling and/or Certificate of Costs in respect of Claimant’s Bill of Costs on condition that KES.1,000,000.00 be deposited in court within 30 days (from 4 December 2025), the Applicant promptly deposited the amount as a commitment and show of its bona fides. The foregoing notwithstanding the Applicant has offered to provide additional security in the form of motor vehicles forming part of its stock-in-trade, which it holds proprietary interest and has given valuation reports on. The Applicant has undertaken to preserve the identified assets, if granted. Ultimately, the Applicant calls upon the Court to strike a balance. While on the one hand is the Claimant’s right to enjoy the fruits of judgment; on the other is the Applicant’s right to pursue an appeal that is not rendered academic. In the circumstances of this case, the balance favours preservation. Granting stay would not prejudice the Claimant, whose interests shall be adequately secured. The values of motor vehicles in question have been deponed and they should form a good basis or security for the sums due to the Claimant. But refusal would expose the Applicant to irreparable harm with far reaching consequences. The Respondent’s submissions 17.The Applicant has filed Written Submissions dated 3rd February 2026 of which we have had the benefit of perusing. We note that the Applicant has submitted on Order 42 Rule 6 of the Civil Procedure Rules. It is important to point out that this Court has already determined on 1st December 2025, that the issue of stay pending Appeal is res judicata following our Preliminary Objection. The issue that is now pending is whether this Court should review the terms of stay issued on 14th January 2025 or not. We thus submit accordingly. From the onset, it is particularly important to note that there exist no Orders to be review or varied by this Honourable Court. This Court granted conditional stay pending Appeal on 14th January 2025. The Applicant did not comply with the Court Orders within the given timelines. The Order for stay therefore automatically lapsed on or about 14th February 2025 for want of compliance by the Applicant. The Applicant now seeks review and variation of Order granted on 14th January 2025. The said orders do not exist. They automatically lapsed for failure of the Applicant to comply with the same. Consequently, the Applicant cannot seek to review and variation of the said Order for stay granted on as they are now spent. We place reliance in the case of Ibrahim, Isaack & Co Advocates v Farah Awad & Sons Limited (Miscellaneous Civil Application E978 of 2023) [2025] KEHC 11947 (KLR) (Civ) (17 June 2025) (Ruling) where Justice S.N. Mutuku held as follows: “The Applicant seeks review and setting aside of orders 2 and 3 granted on 8th April 2025. The said orders do not exist. They automatically lapsed for failure of the Applicant to comply with the same. Consequently, the Applicant cannot seek to review and set aside the order for stay granted on 8th April 2025, for that order is now spent. Order 2. of the instant Application is declined.” Similarly, the court in Simba Coach Limited versus Kiriiyu Merchants Auctioneers [2019] eKLR; stated thus: “Further it must be noted that the applicant herein seeks a review of orders that have been already been spent. These prayers cannot be granted as the orders were conditional and they have since lapsed. Granted these circumstances, even if the applicant had established a case for review, the application would still have failed since in my opinion, no useful purpose would be served by reviewing orders which are already spent.” Based on foregoing submissions and authority, it is evident that this court cannot review the Order dated 14th February 2025 as the same lapsed and is therefore non-existent. The instant Application is thus incompetent and ought to be struck out with costs to the Claimant. Nonetheless and without prejudice to the above, we proceed to submit on merit as below. 18.Whether the Application for Review is merited - The Court's jurisdiction to review its own judgment, as is well known, is limited. The court, indisputably, has a power of review, but it must be exercised within the framework of Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules, 2010. The Court of Appeal summed up the law relating to review in Mutisya (Suing as the personal representative of the Estate of Simon Wambua Makau (Dcd)) v Macharia t/a Three Bins Services & another [2023] KECA 234 (KLR) thus: “Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules are instructive on the principles applicable in a review application. A reading of the above provisions clearly shows that while Section 80 (f) of the Civil Procedure Act grants the court power to make orders for review, Order 45 sets out the jurisdiction and scope of review by hinging review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason.” From the above, it is clear that for an application for review under Order 45, Rule 1 to succeed, the applicant was obliged to show that there had been discovery of new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced at that time. Alternatively, he had to show that there was some mistake or error apparent on the face of the record or some other sufficient reason. In addition, the application was to be made without unreasonable delay. The instant Application seeks review of the orders of 14th January 2025, requiring the deposit of half of the decretal sum in a joint interest earning account by both advocates as security for the appeal within 30 days; and in place be substituted with an order directing the Respondent/Applicant to deposit in Court the Logbooks for Motor Vehicles whose value is commensurate to satisfy performance of the subject decree and cushion for inflation and interest as security for the Appeal. The question that therefore arises , is whether this prayer for review of security for costs falls within the permissible grounds for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, as discussed in the preceding sections. In Mosonk v Changwony (Environment and Land Case 25 of 2015) [2025] KEELC 5428 (KLR), the Court addressed a similar request for review of conditions imposed for stay pending appeal and held: “It is this court’s view that the court having directed payment of security for costs does not amount to an error or mistake on the face of the record. This is because the same was the court’s exercise of its discretion in the conditions to be met in granting stay of execution pending appeal. It is my opinion that the alleged error by the Appellant required reasoning with regard to the aspect of grant of the security for costs thus departing from the normal position that the error should be apparent on the face of the record. In view of the above, I find that the orders for review is not merited.” Similarly, in Amelia Karen Hotel v Kibuba & Another (sued as the Personal Representatives of the Estate of Kibuba Nge’the) (Environment & Land Case E099 of 2021) [2022] KEELC 12818 (KLR), the Court reiterated that discretionary conditions on security imposed in the context of stay applications are not reviewable: “…it is apparent that there is no error apparent on the face of the record. Any question as to the court’s discretion in imposing the conditions that it did with respect to security is a question better suited for appeal.” The above authorities make it clear that issues relating to the adequacy, quantum, or variation of security imposed as a condition for stay pending appeal are matters of judicial discretion, not issues that constitute “error apparent on the face of the record.” As such, they do not fall within the scope contemplated under Section 80 and Order 45. Accordingly, the Applicant was not satisfied with the conditions for stay imposed by this Court, the proper avenue was Appeal and not an Application for review. The Applicant contends that is undergoing financial difficulties and is therefore unable to raise half of the decretal sum. It therefore seeks to instead deposit motor vehicle logbooks as security. We submit that motor vehicle logbooks are not adequate security to secure the decretal sum pending Appeal. We say this because there is no assurance that by the time the appeal will be heard and determined, the motor vehicle will be worth the same value as assessed in the valuation report, nor is there any guarantee of its continued existence, given that it remains under the control and use of the Applicant. Additionally, the valuation report presented by the applicant is biased and cannot be deemed reliable for ascertaining the value of the subject vehicle or its adequacy in settling the decretal sum, as the Claimant was not involved in the assessment process. The court in Lochab Brothers Ltd versus Lilian Munabi Nganga & 2 Others [2007] KEHC 2263 (KLR); addressed the question as to whether a log book is a suitable security for the decretal amounts and stated thus: “…there is no guarantee that by the time the appeal will be heard and determined the vehicle will be worth the same money or it be there at all. The vehicle is still under the control and use of the applicant. Many things can happen to it before the appeal is heard. It can be wasted and its value diminished or it can even be involved in an accident and be completely damaged. I am not saying that this is going to happen but it can happen. If that happens then there will be no security for the respondent to fall back on if the appeal is not successful. Deposit of motor vehicle log book is therefore not a satisfactory security.” Additionally, the court in Waweru versus Kabuga (Civil Appeal E011 of 2022) [2022] KEHC 9966 (KLR) (8 July 2022) (Ruling); stated thus: “The question is whether the deposit of the log book by itself is sufficient security? I do not think so, the motor vehicle upon being released to the applicant will be in the control of the applicant. Its usage and depreciation by the time the appeal is heard may mean that the respondent, in the event the appeal is dismissed, may not recover the fruits of his judgment hence, leading to other proceedings in court.” We submit that the motor vehicle logbooks is unsuitable as security, in view of the numerous risks that may compromise its value or cause it irreparable damage thereby leaving the Claimant with no security should the appeal be unsuccessful. The Application is further incompetent as it has not been made without unreasonable delay, as required under Order 45 Rule 1, and no plausible explanation has been tendered for the inordinate delay of over ten months. The timing of the Application shows that it is not made in good faith and only made to delay the Claimant from enjoying the fruits of the Judgment as it was filed 3 days to the deliverance of the Ruling on Bill of Costs. We submit that there was laxity and inordinate delay on the part of the Applicant in bringing the present Application, considering that it was fully aware of the Orders granted as well as it financial status, and it should have made the Application at the earliest opportunity to salvage the situation and not after the lapse of the conditional period and more than 10 months after the Orders. The respondent urged the court to find congruence with the decision of the Court in Agnes Nyaloya Lukwa (Suing as the Legal Representative of the Estate of the Late Julius Muhambi Amayi (DCD) v Imbuusi [2025] KEELC 887 (KLR) where the Court held as follows: “I note that the Applicant’s dissatisfaction with the conditions of the stay only arose four months after the ruling of 20th June 2024 was delivered….. If the terms of stay were not acceptable to her, the Applicant had an option, under Order 42 rule 6 (1) of the Civil Procedure Rules, to file her appeal in the Court of Appeal and renew her application for stay there. I am not persuaded that based on the material before the Court, a case has been made to allow review of the orders of 20th June 2024. Decision 19.At the outset, the court states that it had already determined the merit of the application for stay of execution in its ruling delivered on the 14th January 2025. The submissions by the application on Order 42(6) are thus resjudicata. What is before me is an application for review of the condition of security in the said ruling. The Employment and Labour Relations Court Rules provide for review as follows –‘74. Review(1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—(a)if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;(b)on account of some mistake or error apparent on the face of the record;(c)if the judgment or ruling requires clarification; or(d)for any other sufficient reason.(2)An application for review of a decree or order of the Court under subrule (1) shall be made to the judge who passed the decree or made the order sought to be reviewed or to any other judge if that judge is not attached to the Court station.(3)A party seeking review of a decree or order of the Court shall apply to the Court by way of notice of motion supported by an affidavit and shall file a copy of the Judgment or decree or ruling or order to be reviewed.(4)The Court shall, upon hearing an application for review, deliver a ruling allowing or dismissing the application.(5)Where an application for review is granted, the Court may review its decision to conform to the findings of the review or quash its decision and order that the suit be heard again.(6)An order made for a review of a decree or order shall not be subject to further review.’ 20.The condition for the grant of the order of stay was a deposit of ½ of decretal sum in a joint interest account within 30 days. The Order was issued on 14th January 2025. There was no compliance. The applicant appears to have been jolted to action on the attempt of execution. On receipt of the application, the court extended the stay on condition of Kshs. 1,000,000 being deposited in court within 30 days. The Applicant has offered to provide additional security in the form of motor vehicles forming part of its stock-in-trade, which it alleged to hold proprietary interest in and has given valuation reports on. The Applicant has undertaken to preserve the identified assets, if granted the relief, so as to sufficiently secure the decretal sums, including accounting for their depreciation. While on the one hand is the Claimant’s right to enjoy the fruits of judgment; on the other is the Applicant’s right to pursue an appeal that is not rendered academic. The Applicant calls upon the Court to strike a balance. 21.The applicant, on the other hand, is opposed to the application for review and stated there is no order sought to extend. The court noted this position was overtaken by events, the court having extended the order on condition of the deposit of One million Kenya Shilllings in court, which was deposited. The Court of Appeal summed up the law relating to review in Mutisya (Suing as the personal representative of the Estate of Simon Wambua Makau (Dcd)) v Macharia t/a Three Bins Services & another [2023] KECA 234 (KLR) thus: “Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules are instructive on the principles applicable in a review application. A reading of the above provisions clearly shows that while Section 80 (f) of the Civil Procedure Act grants the court power to make orders for review, Order 45 sets out the jurisdiction and scope of review by hinging review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason.” From the above, it is clear that for an application for review under Order 45, Rule 1 to succeed, the applicant was obliged to show that there had been discovery of new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced at that time. Alternatively, he had to show that there was some mistake or error apparent on the face of the record or some other sufficient reason. In addition, the application was to be made without unreasonable delay. The instant Application seeks review of the orders of 14th January 2025, requiring the deposit of half of the decretal sum in a joint interest earning account by both advocates as security for the appeal within 30 days; and in place be substituted with an order directing the Respondent/Applicant to deposit in Court the Logbooks for Motor Vehicles whose value is commensurate to satisfy performance of the subject decree and cushion for inflation and interest as security for the Appeal. The question that therefore arises is whether this prayer for review of security for costs falls within the permissible grounds for review under Rule 74 of the court procedural rules. The respondent relied on the decision in Mosonk v Changwony (Environment and Land Case 25 of 2015) [2025] KEELC 5428 (KLR), the Court addressed a similar request for review of conditions imposed for stay pending appeal and held: “It is this court’s view that the court having directed payment of security for costs does not amount to an error or mistake on the face of the record. This is because the same was the court’s exercise of its discretion in the conditions to be met in granting stay of execution pending appeal. It is my opinion that the alleged error by the Appellant required reasoning with regard to the aspect of grant of the security for costs thus departing from the normal position that the error should be apparent on the face of the record. In view of the above, I find that the orders for review is not merited.” The respondent submitted that the Applicant was not satisfied with the conditions for stay imposed by this Court, the proper avenue was Appeal and not an Application for review. That the Applicant contends that is undergoing financial difficulties and is therefore unable to raise half of the decretal sum. It therefore seeks to instead deposit motor vehicle logbooks as security. We submit that motor vehicle logbooks are not adequate security to secure the decretal sum pending Appeal. We say this because there is no assurance that by the time the appeal will be heard and determined, the motor vehicle will be worth the same value as assessed in the valuation report, nor is there any guarantee of its continued existence, given that it remains under the control and use of the Applicant. Additionally, the valuation report presented by the applicant is biased and cannot be deemed reliable for ascertaining the value of the subject vehicle or its adequacy in settling the decretal sum, as the Claimant was not involved in the assessment process. 34. The court in Lochab Brothers Ltd versus Lilian Munabi Nganga & 2 Others [2007] KEHC 2263 (KLR); addressed the question as to whether a log book is a suitable security for the decretal amounts and stated thus: “…there is no guarantee that by the time the appeal will be heard and determined the vehicle will be worth the same money or it be there at all. The vehicle is still under the control and use of the applicant. Many things can happen to it before the appeal is heard. It can be wasted and its value diminished or it can even be involved in an accident and be completely damaged. I am not saying that this is going to happen but it can happen. If that happens then there will be no security for the respondent to fall back on if the appeal is not successful. Deposit of motor vehicle log book is therefore not a satisfactory security.” Additionally, the court in Waweru versus Kabuga (Civil Appeal E011 of 2022) [2022] KEHC 9966 (KLR) (8 July 2022) (Ruling); stated thus: “The question is whether the deposit of the log book by itself is sufficient security? I do not think so, the motor vehicle upon being released to the applicant will be in the control of the applicant. Its usage and depreciation by the time the appeal is heard may mean that the respondent, in the event the appeal is dismissed, may not recover the fruits of his judgment hence, leading to other proceedings in court.” 36. We submit that the motor vehicle logbooks is unsuitable as security, in view of the numerous risks that may compromise its value or cause it irreparable damage thereby leaving the Claimant with no security should the appeal be unsuccessful. The Application is further incompetent as it has not been made without unreasonable delay, as required under Order 45 Rule 1, and no plausible explanation has been tendered for the inordinate delay of over ten months. The timing of the Application shows that it is not made in good faith and only made to delay the Claimant from enjoying the fruits of the Judgment as it was filed 3 days to the deliverance of the Ruling on Bill of Costs. We submit that there was laxity and inordinate delay on the part of the Applicant in bringing the present Application, considering that it was fully aware of the Orders granted as well as it financial status, and it should have made the Application at the earliest opportunity to salvage the situation and not after the lapse of the conditional period and more than 10 months after the Orders. The respondent urged the court to find congruence with the decision of the Court in Agnes Nyaloya Lukwa (Suing as the Legal Representative of the Estate of the Late Julius Muhambi Amayi (DCD) v Imbuusi [2025] KEELC 887 (KLR) where the Court held as follows: “I note that the Applicant’s dissatisfaction with the conditions of the stay only arose four months after the ruling of 20th June 2024 was delivered….. If the terms of stay were not acceptable to her, the Applicant had an option, under Order 42 rule 6 (1) of the Civil Procedure Rules, to file her appeal in the Court of Appeal and renew her application for stay there. I am not persuaded that based on the material before the Court, a case has been made to allow review of the orders of 20th June 2024. 22.The court noted that the business environment is never static and the allegation that it had changed to the detriment of the applicant is not unreasonable. The purpose of security is to guarantee enjoyment of the decretal sum to the decree holder. The applicant has deposited the KShs. 1million in court as ordered. The decree holder has produced authorities to extend that a motor vehicle is not a good security as its value deteriorates with time. The court noted the authorities are distinguished as the security of motor vehicles offered by the applicant are stock in trade, unlike in cited authorities where the vehicles were in use. The court in order to balance the interests of both parties, one for the applicant to exercise the undoubted right of appeal and ensure appeal is not rendered nugatory and other to guarantee enjoyment of decree, the court allows the application as follows-The court is pleased to review its ruling of 14th January 2025 as follows-a.The condition for deposit of ½ of the decreed sum is set aside and substituted as follows- a. The court is pleased to allow stay of the Decree of the court arising from judgment of 23rd February 2024 and subsequent proceedings on condition that the Applicant deposits in a joint interest-earning account the sum of Kshs. 3,000,000 (inclusive of the 1 million deposited in the court of which hereby is ordered to be released to the joint account)and deposit in the court log books of Motor vehicles of market value of the balance of the ½ decreed sum, accompanied by the valuation reports within 30 days of this order. In default the order to lapse.b.Costs of the application to the respondent. 23.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Claimant – OndariRespondent - Gakunga