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ELRCDismissedCause No 1908 of 2011· [2014] KEELRC 885 (KLR)

Paul Gichuhi v Nairobi Pentecostal Church Christ is the Answer ministries (NPC - CITAM) & another [2014] KEELRC 885 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
26 March 2014
LNLINNET NDOLO
1,210 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed an employee's bid to undo a settlement he signed and was paid on, confirming consent orders are binding unless fraud or collusion is proved.

What this practically means

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Executive summary

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The Claimant Union filed a Statement of Claim (amended 20th August 2013) for breach of employment contract and defamation on behalf of two Grievants against the Respondent church. The 2nd Grievant, Paul Gichuhi, elected to act in person by notice dated 15th June 2012 and on the same day executed a consent order with the Respondent's advocates under which his suit was marked fully settled, he was paid Kshs. 715,913.19 as full and final terminal dues, he discharged the Respondent from his defamation and all other claims, and each party was to bear its own costs. In January 2014 he moved the Court to nullify both the notice and the consent order, contending he had been misled, including by a meeting with the Presiding Bishop concerning 'spiritual restoration and healing,' and that the consent order required signature by an authorised Union representative. The Respondent, through the Presiding Bishop's affidavit, maintained the settlement was negotiated openly, payment of dues being tied to amicable settlement, and that the Grievant had selectively reproduced e-mails concealing his unequivocal intention to withdraw the case. The Court framed two issues: the legality of the grievant acting in person and the validity of the consent order. It held a grievant may act in person like a client discharging an advocate. Applying the settled law that consent orders may only be set aside for fraud, collusion or contractual vitiating grounds, the Court found the educated Grievant knew the effect of his actions, had benefited from the order, and had contemporaneously expressed a wish to settle. The application was dismissed with no order for costs.

Key legal issues

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01

Whether a grievant under a union's cover can apply to act in person

Holding

A grievant may apply to act in person, though expected to notify the Union; the 2nd Grievant's election was valid even if made without reference to the Union

Reasoning

The law confers on trade unions a special role to sue on behalf of members, but this does not trap a grievant in union-sponsored litigation. A grievant may act in person like a client withdrawing instructions from an advocate, with notification to the Union. The 2nd Grievant elected to act in person without reference to his Union but was nevertheless entitled to do so, and this did not invalidate the subsequent consent order.

p. 2
02

Whether the consent order of 15th June 2012 should be nullified on the ground that the 2nd Grievant was misled

Holding

The application was dismissed; no ground for setting aside the consent order was made out

Reasoning

Consent orders have contractual effect and can only be set aside on grounds such as fraud, collusion or grounds justifying setting aside a contract. The 2nd Grievant, an educated former pastor, knowingly entered the consent order, received Kshs. 715,913.19 in final settlement, and his contemporaneous e-mails showed a clear wish to settle out of court, making his claim of being misled over a year later implausible.

p. 3

Legal principles established

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  • A consent order or judgment may only be set aside on grounds of fraud, collusion or any other reason which would enable the court to set aside an agreement
  • A grievant in a union-sponsored claim may apply to act in person, much like a client withdrawing instructions from an Advocate, and is expected to notify the Union of that intention

Court orders

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  1. 1.The 2nd Grievant's Notice of Motion dated 13th January 2014 seeking nullification of the notice to act in person and the consent order is dismissed
  2. 2.No order for costs

Authorities

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Cases cited (3)

  • Brooke Bond Liebeg (T) Ltd Vs Mallya
    [1975] EA 266
  • Gerishon Likechi Kitungulu Vs Patel Prabhakar Isuer Bhai
    [2005] eKLR
  • Fredrick Njora Mwangi Vs New Kiona Ltd and Another
    [2010] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Industrial Court under a Statement of Claim for breach of employment contract and defamation

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, "Paul Gichuhi v Nairobi Pentecostal Church Christ is the Answer ministries (NPC - CITAM) & another [2014] KEELRC 885 (KLR)", Case Analysis (2014). Cause No 1908 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/885/eng@2014-03-26

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