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ELRCDismissedIndustrial Court Cause No. 791 (N) of 2009 (with Cause No. 897 of 2011)· [2014] KEELRC 245 (KLR)

Elly Ouma Hongo v Kenya National Union of Teachers (Kisumu East Branch) [2014] KEELRC 245 (KLR)

Industrial Court of Kenya
17 September 2014
940 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A settlement recorded in court is final: without fraud, mistake or misrepresentation, the Employment and Labour Relations Court will not reopen agreed terms.

What this practically means

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Executive summary

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The Claimant, Elly Ouma Hongo, obtained an Award in February 2011 reinstating him after suspension with back pay. After his contract was terminated on 10th May 2011, he filed a second claim, Cause No. 897 of 2011, for unfair termination. On 16th March 2012 the parties recorded a consent settling both claims: the 1st Respondent was to pay the Claimant Kshs.3,016,149 in full and final settlement, liquidated in monthly instalments of Kshs.100,000 from 1st March 2012, with liberty to execute by garnishee proceedings on default. In an application for review dated 29th November 2013, the Claimant argued the consent had incorrectly adopted the pre-2003 Staff Terminal Benefits Scheme instead of the 2003 Scheme, and claimed a balance of Kshs.2,723,232, relying on the Award in Cause No. 282 of 2012 (George Wesonga Ojwang' v. KNUT) which endorsed the post-2003 Scheme. The Court held that the Ojwang' Award rested on an express agreement between different parties and was of little relevance; the parties here negotiated specific terms and were not bound by either scheme. The consent was a valid contract given judicial endorsement and could only be set aside or varied by subsequent consent or on grounds of common mistake, misrepresentation or fraud, none of which was shown. Nor was there discovery of new and important matter, error, or sufficient reason under Rule 32 of the Industrial Court (Procedure) Rules 2010. The application dated 29th November 2013 was declined with no order on the costs.

Key legal issues

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01

Whether review of a Consent Award is warranted on the basis that it adopted an outdated terminal benefits scheme

Holding

The application for review fails because the parties were free to agree their own terms and the Consent Award is a contract endorsed by the Court

Reasoning

The parties negotiated specific settlement terms in ongoing litigation and were not obliged to follow either the pre- or post-2003 KNUT Terminal Benefits Schemes. The Claimant accepted terms he deemed attractive, creating a valid Consent Award with judicial endorsement. The comparative Award in Cause No. 282 of 2012 was based on an express agreement between different parties and is of little relevance. Absent mistake, misrepresentation or fraud, the Court should not interfere.

p. 2
02

Whether the grounds for review under Rule 32 of the Industrial Court (Procedure) Rules 2010 were established

Holding

None of the Rule 32 grounds - discovery of new matter, error apparent on the face of the record, or sufficient reason - were established

Reasoning

The Claimant did not demonstrate discovery of new and important matter that due diligence could not have revealed when the consent was adopted, nor any error or breach of written law. No clarification of the consent was sought, the parties having authored the terms themselves. No sufficient reason was given to warrant interference with the Consent Award.

p. 2

Legal principles established

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  • A Consent Award can only be set aside or varied by subsequent consent, or on grounds that would invalidate a contract such as common mistake, misrepresentation or fraud.
  • Parties agreeing terms of settlement in ongoing litigation are not bound to adopt any particular benefits scheme; the resulting consent becomes a contract given judicial endorsement and the decision of the Court.

Court orders

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  1. 1.The Application dated 29th November 2013 seeking review of the Consent Award is declined
  2. 2.No order on the costs

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 32

Cases cited (1)

  • George Wesonga Ojwang' v. KNUT
    (2014) e-KLR, Cause No. 282 of 2012
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010, Rule 32 (application for review of a Consent Award)

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, "Elly Ouma Hongo v Kenya National Union of Teachers (Kisumu East Branch) [2014] KEELRC 245 (KLR)", Case Analysis (2014). Industrial Court Cause No. 791 (N) of 2009 (with Cause No. 897 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/245/eng@2014-09-17

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