Karewa & another v Modern Coast Bus Limited & 3 others (Constitutional Petition E002 of 2024) [2026] KEELRC 2049 (KLR) (16 July 2026) (Ruling)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA CONSTITUTIONAL PETITION NO. E002 OF 2024 BEATRICE WAKUTHII KAREWA NANCY NYAWIRA MURIITHI .... PETITIONERS/RESPONDENTS VERSUS MODERN COAST BUS LIMITED ......................................... 1ST RESPONDENT/APPLICANT COUNTY OCCUPATIONAL HEALTH & SAFETY OFFICER (MOMBASA) ........................................ 2ND RESPONDENT THE HON. ATTORNEY GENERAL .................... 3RD RESPONDENT AND APA INSURANCE CO. LTD ............................ INTERESTED PARTY **RULING** ***(On the Notice of Motion dated 23rd June 2026 by the 1st Respondent/Applicant, seeking a partial stay of the orders of 17th June 2026 and leave to liquidate the decretal sum by instalments)*** **A. INTRODUCTION** 1. Before court for determination is the Notice of Motion dated 23rd June 2026, brought by the 1st Respondent, Modern Coast Bus Limited (“the Applicant”), under a certificate of urgency of even date, seeking, principally, a partial stay of the execution and implementation of the orders issued by this court on 17th June 2026, and leave to liquidate the balance of the decretal sum due to the Petitioners by way of equal monthly instalments of Kshs. 200,000/= until payment in full. **B. BACKGROUND** 2. This Petition traces its history to a consent judgment recorded before this court on 27th January 2025, by which the Petition herein was compromised on agreed terms: judgment was entered for the Petitioners in the sum of Kshs. 3,220,320/=, payable by an initial instalment of Kshs. 500,000/= on or before 15th February 2025, and subsequent monthly instalments of Kshs. 200,000/= on or before the 15th day of every succeeding month, with the entire outstanding balance falling due for execution in the event of default in any instalment. 3. The Applicant defaulted on the agreed schedule. The Petitioners, by a Notice of Motion dated 1st April 2025, moved this court for orders to enforce the decree against the Applicant's directors personally. On 17th June 2026, this court, upon hearing both parties, allowed that application and, in a ruling whose findings are germane to the application now before court, held that Haroon Shahid Butt, Ameera Rahil Butt, Shanaz Aktar Malik and George Mokua Obiria, being directors of the Applicant, had engaged in fraudulent activities, and ordered them to personally pay the decretal sum together with interest, in default of which they were to be committed to civil jail for a period of not less than six months, with their personal properties liable to attachment in satisfaction of the decree. Costs of those proceedings were ordered to be borne by the judgment debtor. 4. It is common ground that, in partial compliance with the orders of 17th June 2026, the Applicant paid to the Petitioners a further sum of Kshs. 500,000/= on 22nd June 2026, which, added to sums paid earlier, brought total payments made to the Petitioners to Kshs. 1,050,000/=, leaving an outstanding balance of Kshs. 2,170,220/= on the decree. **C. THE APPLICATION** 5. It is against that backdrop that the Applicant filed the Notice of Motion dated 23rd June 2026, supported by the affidavit of Carren Cheruto, its Legal Officer, seeking orders, in the main, that pending the hearing and determination of the application, this court partially stays the execution and implementation of the orders of 17th June 2026 and allows the Applicant to settle the decretal sum by monthly instalments; that this court be pleased to allow the Applicant to liquidate the balance of the decretal sum in equal monthly instalments of Kshs. 200,000/= until payment in full; and, consequently, that the orders of 17th June 2026 be varied to allow the balance to be settled on that basis. 6. The grounds advanced in support of the application, and in the supporting affidavit, are that the Applicant has been facing dire financial challenges following the closure and eventual collapse of its business operations; that it is willing and intent on complying with the court's orders but is reasonably apprehensive that the Petitioners, who have already extracted the orders issued, will proceed to procure and execute warrants of arrest against its directors before the decretal sum can be fully settled, thereby rendering compliance impossible; and that the application is made in good faith, in the interest of justice, and without prejudice to the Petitioners, who, it is contended, will suffer no loss as the balance will in any event be paid to them as ordered by the court. **D. THE OPPOSITION** 7. The application is vigorously opposed. In her replying affidavit sworn on 10th July 2026, the 1st Petitioner, Beatrice Wakuthii Karewa, deposes that the application is bad in law, fatally and incurably defective, ill-motivated, and filed with the sole intention of vexing the Petitioners. She avers that the Applicant had negotiated the terms culminating in the consent judgment of 27th January 2025 but thereafter failed and/or refused to honour those terms; that the Applicant had misled the Petitioners into believing that it had not received any monies from its insurer, only for this to turn out to be false, the Applicant having in fact received settlement in full from its insurer, APA Insurance Company Limited; and that no explanation has been placed before the court as to why the Applicant cannot settle the outstanding sums in those circumstances. 8. It is further deposed that the orders which the Applicant seeks to stay are directed at its directors personally, none of whom has approached the court to demonstrate any prejudice they stand to suffer; that the said directors were twice summoned to court to explain the Applicant's ability to settle the decree and on both occasions failed, ignored or refused to honour the summons; that to entertain the instant application would amount to this court sitting on appeal against its own orders; and that the Applicant has not demonstrated what prejudice it will suffer if execution is allowed to proceed, nor advanced good reason for an extension of time to settle the judgment of the court. The Petitioners urge that they are entitled to enjoy the fruits of their litigation and pray that the application be dismissed with costs. **E. ISSUE FOR DETERMINATION** 9. Having considered the application, the supporting affidavit, the replying affidavit and the record of these proceedings, the singular issue that falls for determination is whether, in the exercise of its discretion, this court should grant the Applicant leave to liquidate the outstanding decretal sum by way of monthly instalments and correspondingly stay or vary the orders of 17th June 2026. **F. ANALYSIS AND DETERMINATION** 10. It is well settled, and this court reiterates, that an application of this nature, that is to say, an application for leave to liquidate a decretal sum by instalments, or, put differently, for an indulgence as to the mode and timing of satisfaction of a decree, calls for the exercise of the discretion of the court. It is not a matter of right that a judgment debtor may claim as of course; it is a discretionary indulgence which the court may grant or withhold according to the justice of the case. 11. Whether that discretion shall be exercised in favour of an applicant depends, in each instance, on the peculiar circumstances of the case before the court. There cannot be, and this court does not purport to lay down, an exhaustive list of the circumstances that may weigh with a court in the exercise of so wide a discretion. That said, through judicial precedent, our courts have over time identified certain general factors germane to that exercise, among them: 1. whether the applicant has demonstrated good faith and a genuine willingness, as opposed to a merely dilatory or delaying intent, in proposing the instalment arrangement (see Kenya Shell Limited v Kibiru & Another [1986] eKLR, where the Court of Appeal, in the analogous context of a stay of execution, emphasised that the discretion of the court must be exercised judicially and not to shield a party bent merely on postponing the day of reckoning); 2. the conduct of the judgment debtor generally, including its history of compliance, or non-compliance, with prior orders, undertakings or consent arrangements entered into with the decree-holder (see James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR, and Flora N. Wasike v Destimo Wamboko [1988] eKLR, both affirming that a consent order or judgment, being in the nature of a contract between the parties recorded with the sanction of the court, is not lightly to be departed from save on grounds such as fraud, misrepresentation or other vitiating factor, and that a party's own conduct in procuring, or thereafter disregarding, such an order is a weighty consideration); 3. the financial capacity and genuine ability of the applicant to honour the proposed instalments, as distinct from a bare assertion of inability to pay in a lump sum; 4. the prejudice, if any, that the decree-holder is likely to suffer by reason of further delay in the enjoyment of the fruits of a judgment already regularly obtained, it being well established that a successful litigant ought not, without compelling reason, to be kept out of the fruits of their judgment (see Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] 2 KLR 63, and Kenya Wildlife Service v James Mutembei [2019] eKLR); 5. the length of time the decree has remained unsatisfied and the number of previous indulgences already extended to the judgment debtor; and 6. the overriding objective of the court, under Sections 1A, 1B and 3A of the Civil Procedure Act as read with Article 159(2)(d) of the Constitution, to do substantive justice between the parties, which cuts both ways and does not favour the judgment debtor to the automatic exclusion of the decree-holder's competing and equally legitimate interest in finality. 12. These factors are not exhaustive, nor are they to be applied mechanically or in isolation. What emerges clearly from the authorities, however, is that the history of a matter, the conduct of the parties, and the general circumstances of the case are factors that cannot be ignored by a court called upon to exercise this species of discretion. Indeed, it is often the totality of the judgment debtor's conduct, viewed against the backdrop of the litigation as a whole, that will tilt the balance one way or the other. 13. Applying those principles to the matter before it, this court is not persuaded that its discretion ought to be exercised in favour of the Applicant. The history of this matter, its general circumstances, and the conduct of the Applicant and its directors, as clearly come out in this court's earlier ruling of 17th June 2026, do not permit the good conscience of this court to avail the orders now sought. 14. This court recalls, first, that the sum now sought to be liquidated by instalments arises from a consent judgment which the Applicant itself negotiated and to which it freely subscribed, and which it thereafter failed and/or refused to honour according to its terms, occasioning the very enforcement proceedings that culminated in the orders of 17th June 2026. Second, and gravely, it is on the record, and was found by this court in that earlier ruling, that the Applicant's directors engaged in fraudulent activities in relation to the satisfaction of this decree, including misrepresenting to the Petitioners that no insurance settlement had been received when, in truth, the Applicant had by then received settlement in full from its insurer, APA Insurance Company Limited. Third, when the Applicant's directors were twice summoned to court to explain the Applicant's capacity to settle the decree, they neither attended nor offered any explanation for their default, a course of conduct scarcely consistent with the good faith now professed in the instant application. Fourth, the application itself does not disclose any exceptional or changed circumstance since the orders of 17th June 2026 were made; it merely repeats, in substance, the very instalment proposal that the Applicant had already once undertaken and breached under the consent judgment of 27th January 2025. 15. It is trite that a litigant will not ordinarily be permitted to approbate and reprobate, to invoke the indulgence of the court while at the same time treating the court's and the opposite party's trust with the disregard demonstrated on this record. Good conscience, upon which equitable indulgences of this nature ultimately rest, is not available to a party whose own conduct, including a finding of fraud made after due hearing, has occasioned the very predicament from which it now seeks relief. This court is satisfied that to accede to the Applicant's prayers would be to reward, rather than remedy, that conduct, and would occasion further and unwarranted prejudice to the Petitioners, who have already been kept out of the fruits of a judgment they consented to on the represented good faith of the Applicant for a period exceeding one year. 16. For completeness, this court does not accept the Petitioners' contention that entertaining the application at all amounts to sitting on appeal against its own orders. A court retains residual jurisdiction over the execution of its own decrees, including jurisdiction to regulate the mode and timing of satisfaction where warranted; an application of this nature is not, in form or substance, an appeal against the merits or findings of the 17th June 2026 ruling, which remain undisturbed. It is, rather, an appeal to the court's equitable discretion as to the mode of compliance, a discretion this court has considered and, for the reasons set out above, declines to exercise in the Applicant's favour. **G. DISPOSITION** 17. In the result, this court finds that the Notice of Motion dated 23rd June 2026 lacks merit and is for dismissal. It is accordingly ordered that: (a) The Notice of Motion dated 23rd June 2026 be and is hereby dismissed. (b) The orders of this court issued on 17th June 2026 remain in full force and effect and shall be executed according to their terms. (c) The Applicant shall bear the costs of this application. Dated, signed and delivered at Mombasa this 16th day of July 2026. **OCHARO KEBIRA** **JUDGE**