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

1. On 22nd October 2025, Marete J. delivered a Judgment in favour of the Claimant and against the Respondent in the sum of Kshs. 6,000,000/= plus costs and interest. The Respondent was aggrieved and lodged a Notice of Appeal dated 22nd October 2025 and also applied for a certified copy of the proceedings on the same day. 2. Subsequently, the Respondent filed an Application by way of Notice of Motion dated 19th November 2025 seeking Stay of execution pending the hearing and determination of the intended Appeal. The motion came up for inter-partes hearing on 3rd February 2026 but parties recorded a consent whereby they agreed to allow the Application on condition that the Respondent judgement debtor deposits the entire decretal amount in a joint interest earning account in the names of the Advocates on record within forty-five (45) days.The respondent defaulted and the stay order lapsed. 3. By a Notice of Motion dated 31 st March 2026 the respondent (applicant) moved the court seeking the following orders: - RULING IN ELRC CAUSE NO. 297 OF 2019.2

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a) That the Honourable reinstate the Court conditional be Stay pleased of to execution Orders given on 3rd February, 2026 that lapsed on 19th March, 2026. b) That the Honourable Court be pleased to vary, review and/or set aside the conditional Stay of execution Orders given on the 3rd of February, 2026 by enlarging the timelines for the deposit of the security for a period of 6 months by way of 6 equal monthly installments. c) That in the alternative, the Honourable Court be pleased to vary, review and/or set aside the conditional Stay of execution Orders given on the 3rd of February, Respondent/Applicant guarantee for the 2026 to by allowing provide decretal sum the a Bank of Kshs. 6,000,000/d) That the costs of this application be in the cause. RULING IN ELRC CAUSE NO. 297 OF 2019.3

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4. The Motion is brought under section 12 of the ELRC Act, Rule 17 of the ELRC Procedures rules and Order 46 Rule 6 of the Civil Procedure Rules, and it is supported by an Affidavit sworn on 31st March 2026 by the respondent’s Head of Claims and Legal, one Ms. Philomena Theuri. 5. The Motion was opposed by a Replying Affidavit sworn on 13th April 2026 by the personal representative of the Estate of the Late Sandra Nyakweba, one Dorothy Bonareri Nyakweba, and it was disposed of by way of written submissions. The Claimant’s submissions are dated 20 th April 2026, and the Applicant’s submissions are dated 18 th May 2026. Applicant’s 6. The applicant’s case is that the Company is currently facing financial challenges and as such it was unable to deposit the colossal decretal sum of Kshs. 6,000,000/= within forty-five (45) days as per the consent Orders. It acknowledged that the forty-five (45) days period ended on 19 th March 2026 and upon evaluation of the Company's negative RULING IN ELRC CAUSE NO. 297 OF 2019.4 financial

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position, it is clear that it would only be able to deposit the entire decretal amount of Kshs. 6,000,000/= in six (6) equal monthly installments. Therefore it prayed for enlargement of time to enable it comply with the conditions for the Stay of execution. In the alternative, it prayed that it be allowed to provide a Bank Guarantee for the decretal sum of Kshs. 6,000,000/= as security. 7. The Applicant relied on Board of Trustees ACK Diocese of Embu v Macumo Day Secondary School & 3 others (ELC Embu No. 66 of 2016) where the Honourable Court reinstated interim Orders and on Owuor v Mombasa Water Product Limited & 3 others (ELC Mombasa No. 44 of 2019) where the Honourable Court varied the terms on the deposit of security. 8. It further submitted that under Rule 74(1)(d) of the Employment and Labour Relations Court Procedure Rules, review can be done for a sufficient reason. It averred that it can deposit the entire decretal amount by installments due RULING IN ELRC CAUSE NO. 297 OF 2019.5

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to financial challenges or in the alternative provide a Bank Guarantee for the decretal sum of Kshs. 6,000,000/=. Claimant’s case 9. The claimant’s case is that that on 3 rd February 2026, the parties voluntarily entered into a consent and the same was adopted as an order of the Court, requiring the Applicant to deposit the decretal sum/security in a joint interest earning account within forty-five (45) days, but it defaulted and the stay orders lapsed. 10. She deposed that the stipulated time of forty-five (45) since lapsed without any compliance or any application for extension of time being made. She deposed that a consent order has contractual effect and can only be set aside or varied on limited grounds such as fraud, mistake, coercion, misrepresentation or any other sufficient cause. 11. She deposed that the Applicant has not demonstrated any fraud, mistake, misrepresentation, coercion or other vitiating factor to warrant the variation of the consent order. She contended that the alleged financial difficulty does not RULING IN ELRC CAUSE NO. 297 OF 2019.6

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constitute sufficient ground to vary or set aside a consent order. She also deposes that the Applicant is improperly seeking this Court's discretion to rewrite a binding agreement between the parties, which is not permissible in law. 12. She further deposed that the Applicant is seeking indulgence after the lapse of the compliance period, without any plausible or satisfactory explanation for the delay, noting that the orders herein are being sought twelve (12) days or more outside the consented time. She deposed that the intended deposit of the security in instalments fundamentally alters the substance of the consent order, to the prejudice of the Respondent. 13. The Claimant fortified her case of Gateway Insurance Company Ltd v Aries Auto Sprays (Civil Appeal No. 317 of 2004) [2011] eKLR where the Court of Appeal stated that a consent judgment can only be set aside on grounds of fraud, misrepresentation, collusion or mistake, RULING IN ELRC CAUSE NO. 297 OF 2019.7

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and the Court has absolutely no jurisdiction to alter the terms of the contract between the parties. 14. She further placed reliance on Timon Otieno Mboga v Kenya Forest Service [2016] eKLR where the court stated that a conditional stay lapses automatically upon failure to comply with the condition upon which it was predicated. 15. She further relied on Said v Manga (Environment and Land Appeal 15 of 2019) [2023] KEELC 16933 (KLR) where the court held that a conditional order whose time has expired before an application to extend its lifespan is a dead order and cannot subsequently be extended. Issues for determination 16. Having considered the Notice of Motion dated 31 st March 2026, the rival Affidavit and submissions, the main issue for determination is whether the conditional order of stay of execution recorded on 3rd February 2026 should reinstated and then reviewed, varied and/or set aside. RULING IN ELRC CAUSE NO. 297 OF 2019.8 be

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17. Rule 74 of the Employment and Labour Relations Court Procedure Rules provides as follows: “74. (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 new and important matter or evidence which, after 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 clarification; or (d) for any other sufficient reason." RULING IN ELRC CAUSE NO. 297 OF 2019.9 requires

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18. The Applicant seeks an Order that this Court does reinstate and then reviews, varies or sets aside the conditional Stay of execution Orders granted on 3rd February 2026 that lapsed on 19th March 2026. It submitted that reinstatement of interim Orders is an equitable remedy and that the instant Application has been filed timeously since the interim Orders lapsed on 19th March 2026 and the instant Application is dated 31st March 2026. It bases the application on Rule 74(1) (d) above. 19. However, the claimant contended that reinstatement is untenable because the consent order of stay was a voluntary agreement that can only be set aside upon demonstration of grounds that vitiates a contract at common law. She further averred that the stay order lapsed without filing of any application for extension of time and therefore it cannot be reinstated. 20. It is clear from the record that on 3rd February 2026, the parties voluntarily entered into a consent order whereby the Applicant agreed to deposit the decretal amount in a joint RULING IN ELRC CAUSE NO. 297 OF 2019.10

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interest earning account within forty-five (45) days. It is also clear from the record that the Applicant failed to comply with the terms of the said consent within the stipulated time, and without making any application for extension of time. 21. In the case of the case of Flora Wasike v Destimo [198288] 1 KAR 266, the court of Appeal held that:“ i. It is settled law that the consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract for example fraud, mistake or misrepresentation. ii. An advocate would have ostensible authority to compromise a suit or consent to a judgment so far as the opponent is concerned. iii. The court would not readily assume that judgment recorded by a was not so unless it was demonstratively shown otherwise.” RULING IN ELRC CAUSE NO. 297 OF 2019.11

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22. In Gateway Insurance Company ltd v Aries Auto Sprays [2011] eKLR the Court of Appeal in a majority judgment held that: “I agree with the learned Judge there were no such circumstances – there was no suggestion of fraud, misrepresentation, or collusion, and no possibility of mistake. No specific statute or provision of law was cited to show that the consent judgment contrary to such law, or public policy. The High Court had absolutely no jurisdiction to alter the terms of the contract between the parties and correctly rejected the appeal before it.” 23. In the instant case, the parties recorded a consent order granting the applicant stay of execution pending appeal on condition that it deposits the whole decretal in a joint account as security, within 45 days. The burden of proof that the consent order was not voluntarily entered into lay on the applicant. No fraud, misrepresentation, coercion, undue influence or mistake was pleaded in the motion and the RULING IN ELRC CAUSE NO. 297 OF 2019.12

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supporting affidavit and none has been proved. It follows that 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. 24. In my view, the conditional stay lapsed upon the applicant’s failure to meet the agreed condition of depositing the decretal sum in a joint account between the counsel on record. It is not possible for the court to reinstate an expired consent order of stay unless the parties consent to do the same. It is trite law that a consent order is a contract between the parties and the court cannot impose it upon the parties unless they agree to it. The claimant has declined that request for reinstatement of the order by the applicant and prayed for the motion to be dismissed with costs. 25. The applicant cited the Board of Trustees ACK Diocese of Embu v Macumo Day Secondary School & 3 others (ELC Embu No. 66 of 2016) where the Court reinstated the interim Orders. However, that case is distinguishable RULING IN ELRC CAUSE NO. 297 OF 2019.13

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from the instant case because it was not dealing with a consent order. 26. Since Applicant herein has not demonstrated any fraud, mistake, misrepresentation, coercion, or other vitiating factor to warrant the variation of the consent order, the court lacks jurisdiction to interfere with the terms of the consent order dated 3rd February 2026, as ennanciated by the Court of Appeal in Gateway Insurance Company Ltd v Aries Auto Sprays [2011] eKLR. 27. Before concluding this ruling, I must observe that the Application is brought under Order 42 Rule 6 of the Civil Procedure Rules which provides that: “…the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and make RULING IN ELRC CAUSE NO. 297 OF 2019.14

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such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.” 28. The above provision is clear about the options, the parties have whenever a trial court grants or declines to grant order of stay of execution pending appeal. In an ideal case, the options, are either to comply with the order granted or challenge the terms in the appellate court. Conclusion 29. I have found that the conditional Stay of execution Orders granted on 3rd February 2026 lapsed on 19th March 2026 upon failure by the Applicant to comply with the condition of depositing the decretal amount within forty-five (45) days. The stay order having been voluntarily entered by the consent of the parties, the same cannot be reinstated without consent of the parties. Consequently, the Notice of RULING IN ELRC CAUSE NO. 297 OF 2019.15

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Motion dated 31st March 2026 is without merit and his hereby dismissed with costs to the Claimant. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Buluma for Claimant Guserwa for Respondent RULING IN ELRC CAUSE NO. 297 OF 2019.16

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