https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1741

Riley Falcon Security Services Ltd v Otieno (Miscellaneous Application E018 of 2026) [2026] KEELRC 1741 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1741 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Miscellaneous Application E018 of 2026 Nzioki wa Makau, J June 24, 2026 Between Riley Falcon Security Services Limited Applicant and Wycliffe Kumbaha Otieno Respondent Ruling 1.The Applicant instituted this suit via a Notice of Motion dated 14th April 2026 seeking, inter alia, leave to file and serve a Memorandum of Appeal out of time against the judgment delivered on 28th May 2025 in Kisumu CM ELRC No. E090 of 2021, Wycliffe Kumbaha Otieno v Riley Falcon Security Services Limited. Upon grant of such leave, it also seeks stay of execution of the said judgment and all consequential orders/proceedings arising therefrom pending hearing and determination of the intended appeal to this court. It also prays that costs of the application abide the outcome of the intended appeal. 2.The application is premised on the grounds on its face and the supporting affidavit of Nancy Machage its Legal Officer. It is contended that the Trial Court failed to deliver its judgment on 3rd December 2024 as earlier scheduled, instead stating that it would be delivered on notice. Following this adjournment, the Applicant argues that neither itself nor its advocates received any subsequent notification on the date of delivery of judgment. According to the Applicant it only discovered much later through the e-filing portal that judgment had been delivered on 28th May 2025 and published on 12th June 2025, by which time the 30-day period for lodging an appeal had already lapsed. For the foregoing reasons it maintains that the failure to file the appeal within time was not its fault. Furthermore, the Applicant avers that a review of the judgment unearthed serious errors of law, hence the intended appeal as per the draft Memorandum of Appeal is arguable and has high chances of success. It is also deponed that if stay is not granted in view of the substantial decretal amount of Kshs. 924,368.40 awarded, the Respondent may proceed with execution occasioning it substantial loss, particularly because there is no assurance that the Respondent would be in a position to refund the decretal sum if the appeal ultimately succeeded. The Applicant emphasizes that it is willing to furnish security for the due performance of the decree by way of a bank guarantee or to comply with any conditions the court may impose. Further supporting the application, it stresses that the Respondent would not suffer prejudice if the orders sought are granted, whereas refusal of the application would unjustly deprive it of its constitutional and statutory right of appeal. The Applicant therefore urges the Court to allow the application in the interests of justice, equity, and the overriding objective of facilitating a fair determination of disputes. 3.In opposition to the application the Respondent swore a replying affidavit on 20th May 2026. He deponed that judgment in the matter was delivered on 28th May 2025 after notice through the Bar Bench WhatsApp forum. He contends that the application is incompetent having been filed more than 11 months after delivery of judgment, without demonstration of any prior steps taken to follow up the issue with the registry or the trial magistrate. As regards the Applicant’s proposal to provide a bank guarantee as security, he argues that it is not tangible security. Additionally, the Respondent contends that the intended appeal does not raise any triable issues and is merely intended to delay his enjoyment of the fruits of the judgment. In conclusion the Respondent depones that stay of execution cannot be granted in the same application as one seeking leave to appeal out of time as there is no substantive appeal to anchor the stay sought. Consequently, he urges the Court to dismiss the application with costs. 4.The application was canvassed by way of written submissions. Applicant’s Submissions 5.The Applicant identifies the sole issue for determination as whether the application is merited. Relying on County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, the Applicant submits that extension of time is a discretionary and equitable remedy, granted where the delay is satisfactorily explained, the application is brought without undue delay, the intended appeal is arguable, and no undue prejudice will be occasioned to the Respondent. 6.The Applicant submits that the delay in filing the appeal was excusable as neither it nor its advocates were notified of the date of delivery of judgment after the matter had been adjourned for judgment on notice. It contends that no notice of judgment or notice of entry of judgment was ever served upon it. The Applicant maintains that the failure to receive notice deprived it of the opportunity to exercise its right of appeal and the delay cannot therefore be attributed to negligence, indolence or inaction on its part. The Applicant further submits that the Respondent’s assertion that notice of judgment was issued through a Bar-Bench WhatsApp forum is unsupported by evidence, as no screenshot, printout or extract of the alleged communication was exhibited. In any event, the Applicant asserts that communication through a WhatsApp forum does not constitute a legally recognized mode of service and there is no evidence that its advocates belonged to the forum or had designated it as an address for service. The Applicant maintains that it acted promptly upon discovering the judgment through the e-filing portal and should not be penalized for the Court’s failure to notify it of the judgment date. It therefore urges the Court to find that the delay has been adequately explained. 7.On the merits of the intended appeal, the Applicant submits that the grounds thereof are neither frivolous nor speculative and are sufficient to warrant the grant of leave to appeal out of time. First, it contends that the trial court erred in finding that the dismissal was procedurally unfair despite documentary evidence showing that a disciplinary process had been undertaken. Second, it asserts that the trial court misdirected itself by holding that the employee could not be dismissed without being charged or convicted of theft, whereas an employer may summarily dismiss an employee for gross misconduct without a prior criminal conviction. Third, it challenges the award of overtime and rest-day pay, contending that part of the claim was statute-barred under section 90 of the Employment Act and that evidence had been produced showing that no overtime was worked or that it had been compensated. Fourth, it contends that the Trial Court failed to consider a signed declaration by the employee acknowledging receipt of terminal dues and confirming that he had no further claims against the employer. Finally, it contends that the award of interest from the date of filing suit rather than from the date of judgment was erroneous. 8.On prejudice, the Applicant submits that the Respondent will suffer no prejudice if the orders sought are granted because it has offered security in the form of a bank guarantee. It submits that a bank guarantee is a recognized and adequate form of security and sufficiently safeguards the Respondent’s interests pending appeal. Conversely, the Applicant contends that if execution proceeds and the decretal sum is paid out, there is a likelihood that the Respondent may be unable to refund the amount should the appeal succeed, thereby rendering the appeal nugatory. The Applicant further submits that the application was brought without unreasonable delay. It emphasizes that the relevant consideration is not the length of delay but whether the delay has been satisfactorily explained. It reiterates that the delay was occasioned by lack of notice of the judgment and that, upon discovering the judgment, it promptly sought the necessary proceedings and filed the present application. 9.In regard to the Respondent’s objection that leave to appeal out of time and stay of execution cannot be sought in the same application, the Applicant submits that the two remedies are complementary and are routinely sought together. It asserts that the Court has jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules and its inherent powers under section 3A of the Civil Procedure Act to preserve the subject matter pending determination of the intended appeal. The Applicant stresses that denying stay in such circumstances would render the intended appeal illusory and defeat the interests of justice. Consequently, it urges the Court to allow the application. Respondent’s Submissions 10.The Respondent submits that the Applicant has not met the threshold for extension of time. He relies on Muinamia v Wainaina (Environment and Land Miscellaneous Application E063 of 2025) [2026] KEELC 3038 (KLR), which referenced the following passage in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR,“The following is a summary of the principles that should guide a Court in exercise of its discretion to extend time: extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court; whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; whether there will be any prejudice suffered by the Respondents if the extension is granted; whether the application has been brought without undue delay; and such other factors as the Court may deem relevant." 11.The Respondent asserts that the Applicant has failed to discharge the burden in the above case specifically because it has not disclosed when it discovered the entry of judgment through the e-filing portal. He asserts that this lack of disclosure is material because it deprives the Court of the ability to assess whether the delay in bringing the application was reasonable. The Respondent therefore submits that this court should make an inference that the Applicant was all along aware of the date of delivery of the judgment and only moved court after execution became imminent. In view of the foregoing the Respondent submits that the Applicant has not laid sufficient basis for exercise of discretion in its favour. He highlights the fact that the Applicant relies on County Executive of Kisumu v County Government of Kisumu & 8 others (supra), that emphasizes explanation of delay yet it has not indicated when it discovered the said judgment in the portal. 12.On the prayer for stay of execution, the Respondent submits that it is untenable as it cannot be sought in the absence of a substantive appeal. In support of this position, the Respondent relies on Jubilee Insurance Company Limited v Nangira [2023] KEELRC 138 (KLR). Consequently, he urges the Court to dismiss the application with costs. Disposition 13.The issue before the Court is basically, stay pending appeal. The power to grant stay pending appeal under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. The powers to grant or refuse an application for stay of execution pending appeal is discretionary in that the Court when granting stay has to balance the interests of the Applicant with those of the Respondent. In this case, there has been the establishment of sufficient cause. The proposed appeal is not tenuous but one that is arguable. There has been offer of security as well. The Court notes there would be substantial loss were the appeal to succeed and the Respondent was unable to refund the decretal sum. 14.In that regard, the Court is minded to grant the motion and order stay pending appeal. Bank guarantee to be availed within 14 days of today. The costs of the motion will abide the outcome in the appeal. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF JUNE 2026NZIOKI WA MAKAU, MCIARB.JUDGE