Agnes Wachu & 104 others v Barclays Bank of Kenya [2014] KEELRC 524 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the consent of 1st July 2011
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
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.
Whether the Ruling of Justice Abuodha determined the dispute and whether res judicata barred setting it aside
The ruling left the core issue - discrimination in calculation of the exit package - to be determined at trial, so res judicata did not arise
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.
Objection under section 16 of the Industrial Court Act (review before the Judge who made the decision)
Objection rejected as the respondent had already submitted to the hearing before the trial Judge
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.
Legal principles established
#- 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
#- 1.The consent recorded by the parties on 1st July 2011 and all consequent proceedings are set aside on the grounds of ambiguity
- 2.The case proceeds for hearing de novo
- Jurisdiction invoked
- Section 12 of the Industrial Court Act (inherent powers), and the court's seisin of the case
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.