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Court of AppealPartially AllowedCivil Appeal No. 57 of 2014· [2015] KECA 675 (KLR)

Bake ‘N’ Bite Limited v Rachel Nungare & 16 others [2015] KECA 675 (KLR)

Court of Appeal of Kenya
29 May 2015
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,420 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out a Kshs 1.76 million employment award because the trial judge ruled without hearing the parties on key issues, ordering a fresh hearing.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Makhandia, Ouko and M'inoti, JJ.A.) allowed this appeal against a judgment of the Industrial Court of Kenya (Makau, J.) which had awarded sixteen former employees of the appellant bakery a total of Kshs 1,764,180 for notice pay, unfair termination compensation, service pay and leave pay. The respondents, all Union members covered by a registered CBA, had sidestepped the Union and filed their own claim. The appellant filed a preliminary objection and Motion contending the claim was premature and incompetent because the CBA dispute-resolution mechanism had not been exhausted; all parties filed written submissions on that application as directed. The trial judge, however, deemed the application abandoned, trashed a consent order signed by the appellant and the Union without any party asking him to, and suo moto determined additional issues such as service pay and leave pay, despite the parties having agreed to litigate only three issues. The Court of Appeal held that a party who files submissions as directed is entitled to a ruling; that a consent order binds all parties and can be set aside only for fraud, collusion or an agreement contrary to public policy, and never suo moto without a hearing; and that in an adversarial system a court may not determine unpleaded issues or grant unclaimed remedies. The Court set aside the judgment and decree of 30th May 2014 and remitted the case to the Employment and Labour Relations Court for hearing before a judge other than Makau, J., with no orders on costs.

Key legal issues

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01

Duty of the trial judge to determine a pending application on which submissions have been filed

Holding

The learned judge erred in concluding that the appellant's application had been abandoned when all parties had filed written submissions as directed; this deprived the appellate court of the trial judge's consideration of weighty issues.

Reasoning

The parties had complied with directions to file submissions addressing the jurisdictional and ripeness questions raised in the Motion. Once submissions were filed, the court was obliged to rule. Failing to do so, and instead deeming the application abandoned, left fundamental labour-relations questions unresolved and deprived the appellate court of the benefit of the lower court's reasoning, a concern articulated in North Staffordshire Railway v Edge.

p. 4
02

Setting aside of a consent order suo moto

Holding

A consent order, once entered, is binding on all parties and may only be set aside on grounds of fraud, collusion or an agreement contrary to public policy, and only on application by a party; a judge may not trash it of his own motion without hearing the parties.

Reasoning

None of the parties had moved the court to set aside the consent order of 19th December 2013; the respondents had in fact accepted it save for three issues. The learned judge nonetheless reopened all issues. Citing Hirani v Kassam and Flora Wasike v Destimo Wamboko, the Court held that consent orders can only be discharged on limited grounds and never without affording the parties a hearing.

p. 5
03

Determination of issues not raised by the parties

Holding

The trial judge acted wrongly in determining, of his own motion, issues such as service pay and leave pay that the parties had not pleaded or submitted, since the parties had agreed to submit only three issues.

Reasoning

Relying on Malawi Railways v Nyasulu (as adopted in IEBC v Mutinda Mule) and David Sironga Ole Tukai v Francis Arap Muge, the Court reaffirmed that in adversarial litigation the parties set the agenda through their pleadings; the court is bound by them and pronouncing on unpleaded matters amounts to deciding without hearing the parties, a denial of justice.

p. 5

Legal principles established

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  • Where parties have filed submissions on an application as directed by the court, they are entitled to a ruling on it; the judge cannot deem the application abandoned.
  • A consent order entered into by the parties is binding and cannot be varied or discharged unless obtained by fraud, collusion or an agreement contrary to the policy of the court, and cannot be set aside suo moto without hearing the parties.
  • In an adversarial system, courts are bound by the parties' pleadings and may not determine issues the parties have not raised or grant remedies not applied for.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the Industrial Court dated 30th May 2014 set aside
  3. 3.Case remitted to the Employment and Labour Relations Court for proper hearing and determination by a judge other than Makau, J.
  4. 4.No orders on costs

Authorities

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Legislation

  • Labour Relations ActNo. 14 of 2007

Cases cited (7)

  • North Staffordshire Railway Company v Edge
    (1920) A.C. 254
  • Hirani v Kassam
    (1952), 19 EACA 131
  • Flora Wasike v Destimo Wamboko
    (1988) 1 KAR 625
  • Kenya Commercial Bank Ltd v Benjoy Amalgamated Ltd & Another
    CA No 276 of 1997
  • IEBC & Another v Stephen Mutinda Mule & Another
    CA No 219 of 2013
  • Malawi Railways Ltd v Nyasulu
    [1998] MWSC, 3
  • David Sironga Ole Tukai v Francis Arap Muge & Others
    CA No. 76 of 2014
On appeal from
Industrial Court of Kenya (now the Employment and Labour Relations Court) at Mombasa
I.C.C. No. 220 of 2013
Jurisdiction invoked
First appellate jurisdiction over the Industrial Court of Kenya (Employment and Labour Relations Court); no specific constitutional provision cited in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bake ‘N’ Bite Limited v Rachel Nungare & 16 others [2015] KECA 675 (KLR)", Case Analysis (2015). Civil Appeal No. 57 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/675/eng@2015-05-29

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