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Case Brief · caselaw.co.ke
ELRCDismissedCause No. 297 of 2019

Dorothy Bonareri Nyakweba (Suing as Personal Representative of the Estate of Sandra Nyakweba) v Directline Assurance Company Limited

Employment and Labour Relations Court of Kenya
24 September 2026
2,437 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Directline Assurance lost its bid to revive a lapsed stay of execution because a consent order binds like a contract and financial hardship is no excuse.

What this practically means

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Executive summary

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This ruling by Onesmus Makau J in the Employment and Labour Relations Court at Nairobi disposed of a Notice of Motion dated 31st March 2026 by Directline Assurance Company Limited, the judgment debtor in Cause No. 297 of 2019. Marete J had on 22nd October 2025 given judgment for the claimant, as personal representative of the estate of Sandra Nyakweba, in the sum of Kshs. 6,000,000 plus costs and interest. On 3rd February 2026 the parties recorded a consent allowing the respondent's application for stay of execution pending intended appeal on condition that the entire decretal amount be deposited in a joint interest-earning account within 45 days. The respondent defaulted, the stay lapsed on 19th March 2026, and it then sought reinstatement of the lapsed orders and enlargement of time to pay in six monthly installments or, alternatively, to provide a bank guarantee, invoking Rule 74(1)(d) of the ELRC Procedure Rules and Order 42 Rule 6 of the Civil Procedure Rules. The claimant opposed, maintaining that a consent order has contractual effect and can only be varied on grounds such as fraud, mistake, coercion or misrepresentation, none of which was demonstrated. The court held that the conditional stay lapsed automatically upon non-compliance, that an expired consent order cannot be reinstated without the parties' consent, and that alleged financial challenges fall below the threshold for interfering with a consent order. Distinguishing the ACK Diocese of Embu case as not involving a consent order, the court dismissed the motion with costs to the claimant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the conditional order of stay of execution recorded on 3rd February 2026 should be reinstated and then reviewed, varied and/or set aside

Key legal issues

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01

Whether the lapsed conditional stay of execution consent order could be reinstated and varied on grounds of financial hardship

Holding

The application was dismissed; the consent order lapsed automatically on non-compliance and financial difficulty is not sufficient reason to review a consent order

Reasoning

The parties voluntarily recorded a consent on 3rd February 2026 requiring deposit of the decretal sum within 45 days. The applicant defaulted without seeking extension. A consent order has contractual effect and can only be set aside on grounds such as fraud, mistake, coercion or misrepresentation. None was pleaded or proved; the burden lay on the applicant. The claimant declined reinstatement, and the court cannot impose a consent order on unwilling parties.

p. 12
02

Whether the court has jurisdiction to alter the terms of a consent order

Holding

The court lacks jurisdiction to interfere with the terms of a consent order absent vitiating factors, following Gateway Insurance v Aries Auto Sprays

Reasoning

Relying on the Court of Appeal in Gateway Insurance Company Ltd v Aries Auto Sprays, the court held that where no fraud, misrepresentation, collusion or mistake is suggested, the court has absolutely no jurisdiction to alter the terms of the contract between the parties. The applicant's alleged financial challenges did not meet the legal threshold for interference.

p. 14

Legal principles established

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  • A consent order is a contract between the parties and can only be set aside on grounds that would justify setting aside a contract, such as fraud, mistake or misrepresentation
  • An expired consent order of stay cannot be reinstated by the court unless the parties consent
  • A conditional stay lapses automatically upon failure to comply with the condition on which it was predicated

Court orders

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  1. 1.The Notice of Motion dated 31st March 2026 is dismissed with costs to the Claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 12 of the ELRC Act, Rule 17 of the ELRC Procedure Rules, Rule 74 of the ELRC Procedure Rules and Order 46 Rule 6 of the Civil Procedure Rules

Relief refused

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Reinstatement of the lapsed conditional stay of execution orders of 3rd February 2026

The stay lapsed on failure to comply with the consent condition and cannot be reinstated without the parties' consent; the claimant declined

p. 13

Enlargement of time to deposit the decretal sum in six equal monthly installments

Financial challenges fall below the legal threshold for interfering with a consent order; no vitiating factor proved

p. 13

Alternative relief to provide a bank guarantee of Kshs. 6,000,000/= as security

The court lacks jurisdiction to vary the terms of the consent order absent fraud, mistake, misrepresentation, coercion or other vitiating factor

p. 14

Costs

The Notice of Motion dated 31st March 2026 is dismissed with costs to the Claimant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is not possible for the court to reinstate an expired consent order of stay unless the parties consent to do the same.
p. 13Reinstatement of lapsed consent orders
the alleged financial challenges cited as the reason for review of the conditional stay order is way below the legal threshold for interfering with a consent order agreed by the parties on 3rd February 2026.
p. 13Financial hardship as sufficient reason for review
Consequently, the Notice of Motion dated 31st March 2026 is without merit and his hereby dismissed with costs to the Claimant.
Final orders - dismissal

Issues in the judgment

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minor

Typographical error in the final orders

minor

Misspelling of 'enunciated' in a key holding

minor

Header anomaly referencing Makau J on a date when Marete J delivered the underlying judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Dorothy Bonareri Nyakweba (Suing as Personal Representative of the Estate of Sandra Nyakweba) v Directline Assurance Company Limited", Case Analysis (2026). Cause No. 297 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2509/eng@2026-09-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.