Elly Ouma Hongo v Kenya National Union of Teachers (Kisumu East Branch) [2014] KEELRC 245 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether review of a Consent Award is warranted on the basis that it adopted an outdated terminal benefits scheme
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
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.
Whether the grounds for review under Rule 32 of the Industrial Court (Procedure) Rules 2010 were established
None of the Rule 32 grounds - discovery of new matter, error apparent on the face of the record, or sufficient reason - were established
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.
Legal principles established
#- 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
#- 1.The Application dated 29th November 2013 seeking review of the Consent Award is declined
- 2.No order on the costs
- Jurisdiction invoked
- Industrial Court (Procedure) Rules 2010, Rule 32 (application for review of a Consent Award)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.