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ELRCPartially AllowedIndustrial Court Cause Nos. 1056, 1354, 1147, 1604 of 2012 (Consolidated); with 808 of 2012, 160 of 2010, 36 of 2012, 791 of 2012, 1746 of 2011 and 2233 of 2012· [2012] KEELRC 52 (KLR)

ROBERT N. LICHORO & ANOTHER V BONNE N. BARASA & 2 OTHERS [2012] KEELRC 52 (KLR)

Industrial Court of Kenya
13 December 2012
MNMathews N. Nduma
4,920 words in judgment
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The bottom line

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Kenya's Industrial Court upheld a negotiated settlement in a union leadership dispute, ruling that consent agreements bind everyone who signed them and can only be set aside like a contract.

What this practically means

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Executive summary

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This judgment of the Industrial Court (Principal Judge Mathews N. Nduma) disposes of a web of consolidated causes between factions of the Aviation and Allied Workers Union (K). Following Justice Rika's Ruling of 26th September 2012 consolidating four causes and freezing the Union's bank accounts, the parties negotiated under COTU's auspices and a 20-clause Consent Award was recorded on 17th October 2012, reinstating officials, reverting the Union Constitution, unfreezing accounts and compromising pending suits. Two urgent applications immediately opposed the Award: one by Timothy Muchiri and 9 others (Cause No.2233 of 2012) and one seeking joinder and setting aside of Clause 7. At the pre-trial conference the parties framed eleven issues and consented to an independent five-year financial audit. The court held that the Consent Award was entered freely and voluntarily, was binding on all signatories including Daniel Yatich, who participated in crafting it and was represented by Guserwa & Company Advocates, and that its validity follows the contractual nature of consent orders per Wasike v Wambuko and Gichuki v Munjua. The Muchiri applicants lacked capacity and locus standi. All parties conceded Clause 7 (concerning unrelated Cause No.160 of 2010) was ill-conceived, and it was struck off. The court upheld the Consent Award as varied, validated the Registrar's extract of officials from the 13th February 2011 elections, directed an independent audit of five years' accounts within 30 days, and made no order as to costs.

Key legal issues

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01

Validity and binding effect of the Consent Award of 17th October 2012

Holding

The Consent Award is proper, valid and binding on all parties who crafted and signed it, including Daniel Yatich, and remains in place except Clause 7 which was struck off by consent

Reasoning

The court found the Consent was entered into freely and voluntarily, overseen by COTU, and that all parties including Yatich (through Guserwa & Company Advocates on record) participated in its crafting. Even if Yatich were not bound, the Consent remains binding between the other eleven signatories; his recourse is review under Rule 32 of the Industrial Court (Procedure) Rules, 2010 on limited grounds.

p. 10
02

Capacity and locus standi of the applicants in Cause No.2233 of 2012

Holding

The applicants lack capacity to set aside a consent award to which they were not parties and lack locus standi to represent the Union, not being officials

Reasoning

Timothy Muchiri did not disclose in what capacity he brought the suit; the applicants are not officials of the Union. Their recourse as members lies within the Union Constitution to challenge illegal activities of officials or trustees.

p. 7
03

Validity of the 13th February 2011 elections

Holding

The extract of officials issued by the Registrar of Trade Unions following the 13th February 2011 elections remains valid until any other lawful election under the Union Constitution

Reasoning

Challenges to the Registrar's decision must be filed within 30 days under Section 30 of the Labour Relations Act; no timely appeal was filed. The Consent Award preserved the registered officials, and the court held that the extract is valid until fresh lawful elections.

p. 10
04

Clause 7 of the Consent Award (Cause No.160 of 2010)

Holding

Clause 7 is struck off the Consent Award by consent of all parties because it concerned parties and a cause not connected to the matters compromised

Reasoning

All parties conceded that Clause 7 was ill-conceived: its subject matter arose from Cause No.160 of 2010 involving 12 unconnected parties, and necessary disclosures which would have led to its exclusion were not made to the court.

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
  • Review and setting aside of a consent order requires more than ordinary grounds for review

Court orders

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  1. 1.The Consent Award of 17th October, 2012 is proper and valid and the same is varied only to the extent of expunching Clause 7 thereof
  2. 2.The Extract of the Aviation & Allied Workers Union (Kenya) officials issued by the Registrar of Trade Unions on 13th February, 2011 is valid until any other lawful election of officials and Trustees is conducted as per the Union's Constitution
  3. 3.All actions done by the duly elected Union Officials pursuant to the Consent Order of 17th October, 2012 are legitimate and valid to the extent they comply with the law and the Union Constitution
  4. 4.Audited Accounts of the Union for the past 5 years be conducted by an Independent Firm of Auditors and the Report be submitted to the Court within 30 days
  5. 5.No order as to costs
Jurisdiction invoked
Section 30 of the Labour Relations Act, 2007; Industrial Court (Procedure) Rules, 2010

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, "ROBERT N. LICHORO & ANOTHER V BONNE N. BARASA & 2 OTHERS [2012] KEELRC 52 (KLR)", Case Analysis (2012). Industrial Court Cause Nos. 1056, 1354, 1147, 1604 of 2012 (Consolidated); with 808 of 2012, 160 of 2010, 36 of 2012, 791 of 2012, 1746 of 2011 and 2233 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/52/eng@2012-12-13

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