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ELRCOtherNotice of Motion dated 9th October 2013 (Industrial Cause filed 25th May 2011)· [2014] KEELRC 524 (KLR)

Agnes Wachu & 104 others v Barclays Bank of Kenya [2014] KEELRC 524 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
13 March 2014
2,911 words in judgment
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The bottom line

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Kenya's Industrial Court set aside a consent order it found ambiguous and ordered 105 former KCB employees' severance dispute to start afresh for a full hearing.

What this practically means

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Executive summary

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This is a ruling by Maureen Onyango, J of the Industrial Court at Nairobi on a Notice of Motion dated 9th October 2013 by 105 former employees of Kenya Commercial Bank seeking to set aside a ruling of Justice Abuodha delivered 24th April 2013, to have the case heard on priority basis, and costs in the cause. The underlying claim concerned severance pay capped at 16 years of service, alleged discrimination, unpaid leave and interest. The claim had earlier been the subject of a consent of 1st July 2011 directing determination of liability first on written submissions; Justice Abuodha prepared a ruling which was delivered by Justice Nderi. The claimants argued the ruling was ambiguous, dealt with an unseverable cause of action piecemeal, calculated only one claimant's entitlement, and left the discrimination issue unresolved. The respondent objected on the basis of section 16 of the Industrial Court Act, argued the application was an appeal against a brother Judge's decision and res judicata, citing several res judicata authorities. The court found the ruling had not determined the gist of the claim - alleged discrimination in calculation of the exit package - which was left for trial, so res judicata did not arise. It rejected the section 16 objection as coming too late. Finding the 1st July 2011 consent ambiguous and lacking a meeting of minds, the court invoked section 12 of the Industrial Court Act to set aside the consent and all consequent proceedings and ordered the case to proceed for hearing de novo. No costs order was made.

Key legal issues

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01

Validity of the consent of 1st July 2011

Holding

The consent was ambiguous as it did not specify whether 'liability' covered all issues or only the exit package; it was set aside with all consequent proceedings

Reasoning

The court found a misunderstanding between what the parties intended and what was done. The consent did not define the scope of 'liability', the parties themselves disagreed on what they had consented to, and there was no meeting of minds. Ambiguity is a recognized ground for setting aside a consent, and section 12 of the Industrial Court Act empowered the court to set it aside sua sponte to allow a hearing on the merits.

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02

Whether the Ruling of Justice Abuodha determined the dispute and whether res judicata barred setting it aside

Holding

The ruling left the core issue - discrimination in calculation of the exit package - to be determined at trial, so res judicata did not arise

Reasoning

The court held the gist of the claim was discrimination in how the exit package was calculated, an issue Justice Abuodha expressly left for trial. Since the issue in dispute was never determined, setting aside consequential proceedings was no appeal and no res judicata arose. The authorities cited by the respondent on res judicata were therefore inapplicable.

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03

Objection under section 16 of the Industrial Court Act (review before the Judge who made the decision)

Holding

Objection rejected as the respondent had already submitted to the hearing before the trial Judge

Reasoning

The respondent argued reviews must be made to the Judge who delivered the judgment. The court held that having submitted to the hearing of the case before the present Judge, the respondent could not pick and choose which parts of the case the Judge could hear; the objection came too late as the court was already seized of the matter.

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Legal principles established

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  • A consent order that is ambiguous as to its scope may be set aside by the court to pave way for hearing on the merits, even if no party specifically prays for it
  • Where a party has submitted to the hearing of a case before a Judge, they cannot later object that review applications must be heard by the Judge who delivered the decision

Court orders

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  1. 1.The consent recorded by the parties on 1st July 2011 and all consequent proceedings are set aside on the grounds of ambiguity
  2. 2.The case proceeds for hearing de novo

Authorities

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Legislation

  • Industrial Court Actsection 16
  • Industrial Court Actsection 12
  • Employment Actsection 40 (referred to in submissions)

Cases cited (5)

  • Dickson Mucho Muriuki vs Timothy Kagondu Muriuki & 6 Others
    eKLR
  • James Mwashori Mwaqkio Vs Kenya Commercial Bank Ltd
    (1998) eKLR
  • Ngugi Vs Kinyanjui & 3 Others
    (1989) KLR 146
  • Virgin Atlantic Airways Limited Vs Zodiac Seats UK Limited
    (2013) UKSC 46
  • Nyali Beach Hotel Limited Vs Kenya Commercial Bank Limited & Another
    (2006) E.A. 304
Jurisdiction invoked
Section 12 of the Industrial Court Act (inherent powers), and the court's seisin of the case

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, "Agnes Wachu & 104 others v Barclays Bank of Kenya [2014] KEELRC 524 (KLR)", Case Analysis (2014). Notice of Motion dated 9th October 2013 (Industrial Cause filed 25th May 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/524/eng@2014-03-13

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