Riley Falcon Security Services v Lumbete (Appeal E006 of 2023) [2026] KEELRC 1434 (KLR) (28 May 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **APPEAL NO. E006 OF 2023** RILEY FALCON SECURITY SERVICES………………..….…**APPELLANT** **VERSUS** DENNIS LUMBETE................................................................**RESPONDENT** **RULING** 1. Vide an application dated 30th March 2026, the Appellant/Applicant seeks the following orders: * + 1. *Spent* 2. *Spent* 3. *THAT this Honourable Court be pleased to review, set aside and/or vary its previous orders made herein on 25th September 2024 indicating that parties having complied with the orders in relation to the Applicants stay application, the application dated 12th August 2024 is spent.* 4. *THAT in lieu thereof, this Honourable Court be pleased to order that the Appellant deposits the decretal sum of Kshs. 112,000/- together with costs and interest thereon directly into Court, pending the hearing and determination of the Appellant’s appeal to the Court of Appeal.* 5. *THAT upon such deposit being made, the stay of execution of the judgment and decree of this Honourable Court dated 11th July 2024 do continue to subsist pending the hearing and determination of the Appellant's appeal before the Court of Appeal.* 6. *THAT the costs of this application be provided for*. 2. The application is premised on the grounds set out on its face and is supported by the affidavit of Ms. Linda Agatha, counsel for the Applicant. She deposes that following the judgment delivered in this matter, whereby the Appellant was condemned to pay Kshs. 112,000/- together with costs and interest, the Appellant lodged an appeal before the Court of Appeal and simultaneously sought stay of execution pending appeal. Counsel avers that upon hearing the application for stay dated 12th August 2024, this Court directed the Appellant to deposit the decretal sum in court. However, the parties subsequently agreed by consent to instead deposit the decretal amount in a joint interest earning account in the names of both advocates on record, which variation was communicated to and adopted by the Court. Counsel further deposes that following the adoption of the consent order, the Appellant forwarded account opening forms to the Respondent’s advocates for execution, but no response was forthcoming. She therefore contends that the Respondent’s subsequent filing of a Notice to Show Cause with a view to executing the decree was made in bad faith. It is her position that leave to deposit the decretal sum in court is necessary since the Respondent’s financial ability to refund the decretal amount, should the appeal succeed, remains unknown. Counsel further maintains that unless the orders sought are granted, the appeal may be rendered nugatory, thereby occasioning the Appellant irreparable loss, whereas the Respondent would suffer no prejudice if the decretal sum is secured in court. 3. In opposition to the application, the Respondent filed grounds of opposition dated 23rd April 2026 contending that the application is unmerited, misconceived, frivolous, vexatious, an afterthought and an abuse of the court process. The Respondent further maintains that no sufficient grounds have been advanced to warrant the grant of the orders sought. 4. The application was canvassed by way of written submissions. Appellant’s Submissions 1. The Appellant submits that it has met the triple conditions for grant of stay under Order 42 Rule 6(2) of the Civil Procedure Rules. On substantial loss, the Appellant reiterates that the Respondent’s ability to refund the decretal sum, should the appeal succeed, remains unknown. It asserts that the Respondent is a person of undisclosed means and has not demonstrated ownership of assets or any business undertaking from which recovery may be effected in the event the appeal succeeds. The Appellant further points out that the Respondent has not adduced evidence showing his financial capability to refund the decretal sum and that during the trial he testified that he would be unable to refund the same. Reliance is placed on the case of **Antoine Ndiaye *v* Africa Virtual University [2015] eKLR**, where the Court held: *" Therefore, in a monetary decree, like the case here, substantial loss lies in the inability of the Respondent to refund the decretal sum should the appeal succeed. It matters not the mount involved as long as the Respondent cannot pay back. The onus of proving substantial loss and in effect that the Respondent cannot pay lies with the Applicant."* 1. On whether the application was filed timeously, the Appellant submits that there was no unreasonable delay. It points out that judgment was delivered on 11th July 2024 and the initial application for stay was filed on 12th August 2024. Further, it contends that this application was filed promptly upon service of the Notice to Show Cause. On security for the due performance of the decree, the Appellant submits that the entire decretal sum has already been deposited in court in compliance with the orders issued on 13th August 2024 and reaffirmed on 10th April 2026. It asserts that the purpose of security under Order 42 Rule 6(2)(b) of the Civil Procedure Rules is to safeguard the Respondent’s interests pending appeal and that such purpose has already been achieved since the decretal sum is safely secured in court. Consequently, the Appellant contends that the Respondent will suffer no prejudice if stay is granted. 2. The Appellant further submits that the balance of convenience and the interests of justice favour the grant of stay. It asserts that if execution proceeds and the decretal sum is released to the Respondent, the pending appeal would be rendered nugatory. Conversely, it submits that the Respondent stands to suffer no prejudice if stay is granted because the decretal amount remains secured in Court and would still be available to him should the appeal fail. Reliance is placed on **Sankale Ole Kantai T/A Kantai *&* Co. Advocates *v* Housing Finance Co. (K) Ltd [2014] eKLR**, where the court affirmed that the jurisdiction to grant stay should be exercised in a manner that serves substantive justice. In view of the foregoing the Appellant urges the court to allow the application in the interests of justice. Respondent’s Submissions 1. The Respondent, on his part, submits that the application is devoid of merit and amounts to an abuse of the court process and is intended to frustrate him from enjoying the fruits of his judgment. He contends that the Appellant has consistently failed to comply with court orders while at the same time filing applications aimed at delaying execution. The Respondent further submits that despite the consent entered into on 25th September 2024, no satisfactory explanation has been offered for the delay in depositing the decretal sum. He maintains that the Appellant was only roused from slumber once he commenced execution proceedings hence it is not entitled to the orders sought. On the issue of setting aside the consent order, the Respondent submits that the Appellant has failed to meet the legal threshold for setting aside a consent. He therefore urges the Court to dismiss the application with costs. Disposition 1. A consent becomes a judgment or order of the court once adopted as such. Once consent is adopted by the court, it automatically changes character and becomes a consent judgment or order with contractual effect and can only be set aside on grounds which would justify setting aside. These grounds are fraud, mutual mistake, duress, or misrepresentation and subsequent impracticability. These elements are lacking in the case before me. The Respondent is right. The Appellant is indolent and has repeatedly failed to comply with orders of the Court. It is my order that the Appellant must deposit the entire decretal sum into Court within 7 days of today failing which the stay granted lapses automatically. One cannot have their cake and eat it too. The Respondent shall also be entitled to the costs of the motion before this Court on the higher scale as the Appellant’s recalcitrance is the reason we are here. It is so ordered. **Dated and delivered at Nairobi this 28th day of May 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**