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Court of AppealPartially AllowedCivil Appeal No. Nyeri 105 of 2016· [2017] KECA 33 (KLR)

Francis Kimutai Bii v Kaisugu (Kenya) Ltd [2017] KECA 33 (KLR)

Court of Appeal of Kenya
22 November 2017
2,214 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a signed, partly-paid settlement is binding and can only be undone for fraud, collusion, illegality or mistake.

What this practically means

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Executive summary

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This is a single judgment of the whole Court of Appeal (G.B.M. Kariuki, F. Sichale and S. ole Kantai, JJA) allowing the appellant's appeal against a ruling of Marete, J. of the Employment and Labour Relations Court at Kericho delivered on 28th January 2016. The appellant, a former tea plucker, had sued for terminal benefits; the cause was designated a test suit for Causes 26 to 95 of 2015 and was resolved by a consent dated 4th September 2015, adopted as judgment on 8th September 2015, awarding four months' salary and other benefits and to be replicated across the series. The respondent paid two instalments of Ksh.800,000 each, then moved to set aside the consent on the ground that its signatory, the HR Manager, lacked authority. Marete, J. allowed the motion and set the consent aside, additionally nullifying it because it had been adopted by a Senior Principal Magistrate who was not a Registrar. The Court of Appeal allowed the appeal. It reaffirmed that a consent judgment has contractual effect and may be set aside only on grounds that would vitiate a contract - fraud, collusion, illegality, mistake or similar vitiating factors - none of which existed here; the signature of the HR Manager was ex abundanti cautela and the consent had been partly performed. The court further held that the Judge erred in deciding the adoption-by-magistrate issue, which had never been raised before him. The ruling of 28th January 2016 was set aside, the consent judgment upheld across all 70 causes, with costs of the appeal to the appellant.

Key legal issues

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01

Whether the consent order could be set aside on the ground that the signatory lacked authority

Holding

No - execution by the respondent's Human Resource Manager, whose identity and role were not denied and through the respondent's own advocates, was not a vitiating ground; the consent was performed by payment of two instalments

Reasoning

The consent was routed through the respondent's advocates on record, Kiplenge & Kurgat, who sent it to the respondent's Human Resource Manager, Mr. Cheruiyot, for signature. It was then filed, adopted, taxed and partly satisfied by two payments of Ksh.800,000 each. The court held there was no fraud, collusion, mistake or illegality, and that signing by the HR Manager was merely ex abundanti cautela. Payment in performance of the consent reinforced its binding effect.

p. 4
02

Whether the Judge could set aside the consent because it was adopted by a Senior Principal Magistrate rather than a Registrar

Holding

No - that issue was not raised in the motion and the Judge erred in deciding it sua sponte

Reasoning

Marete, J. made heavy weather of the fact that the consent judgment was adopted by George Ong'ondo, a Senior Principal Magistrate who was not a Registrar or Deputy Registrar of the ELR Court, and declared the judgment a nullity. The Court of Appeal held, with profound respect, that this issue was not raised in the motion dated 1st December, 2015, and a judge cannot decide an issue not canvassed by the parties. That error undermined the setting aside of the consent.

p. 4
03

Whether an advocate may swear an affidavit on facts within his own knowledge

Holding

Raised by the appellant as a complaint about expunging counsel's replying affidavit; the court did not rule on it given the allowance of the appeal on other grounds

Reasoning

The appellant faulted the trial judge for expunging the replying affidavit of Isaac Meroka on the basis that counsel was not competent to swear it, relying on Kamlesh Pattni v Nasir Ibrahim Ali, which holds there is no express prohibition against an advocate swearing to facts within his own knowledge. The Court of Appeal allowed the appeal on the consent-judgment grounds and did not expressly pronounce on this point in its dispositive reasoning.

p. 3

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • A consent may be varied only on grounds that would vitiate a contract, including fraud, collusion, illegality, mistake, and ignorance of material facts
  • A court cannot, of its own motion, determine an issue that was not raised or canvassed by the parties

Court orders

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  1. 1.The ruling of 28th January, 2016 is set aside
  2. 2.The consent adopted as a judgment of the court on 8th September, 2015 is upheld
  3. 3.These orders shall apply to Kericho ELR Cause No. 26 - 95 of 2015
  4. 4.Costs of this appeal to the appellant

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 8

Cases cited (4)

  • Kamlesh Pattni v Nasir Ibrahim Ali & 2 Others
    CA No. 354 of 2004 (2005) eKLR
  • Flora Wasike v Destimo Wamboko
    KSM CA No. 81 of 1984
  • J.M. Mwakio v Kenya Commercial Bank Ltd
    NBI App. No. 28 of 1982 and 69 of 1983
  • Samuel Mbugua Ikumbu v Barclays Bank of Kenya Limited
    NBI CA No. NAI. 1 of 2015
On appeal from
Employment and Labour Relations Court of Kenya at Kericho
E.L.R.C No. 25 of 2015
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (not expressly stated in the 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, "Francis Kimutai Bii v Kaisugu (Kenya) Ltd [2017] KECA 33 (KLR)", Case Analysis (2017). Civil Appeal No. Nyeri 105 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/33/eng@2017-11-22

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