Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNot stated· [2014] KEELRC 1498 (KLR)

Edward Acholla v Sogea Satom Kenya Branch & 2 others [2014] KEELRC 1498 (KLR)

Employment and Labour Relations Court
1 December 2014
MMM. Mbaru
1,325 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

#

A Kenyan court confirmed that a settlement consent is not binding until the court adopts it, and a party claiming duress can stop it.

What this practically means

#

Executive summary

#
The Claimant, Edward Acholla, applied by Notice of Motion on 30th September 2014 to set aside a proposed consent judgment dated 29th August 2014, alleging he signed it under extreme duress occasioned by financial pressure from his son's rare cancer treatment, and sought that the matter proceed to full hearing. The Respondents opposed, asserting the consent was signed freely and voluntarily after extensive negotiations in the presence of an advocate, and that the application was frivolous, vexatious and an abuse of process, arguing also that the court is bound under Article 159 of the Constitution to promote alternative dispute resolution. The court held that a consent drawn to settle a dispute already in court cannot take effect without an order of the court; the consent here was never adopted because the Claimant was absent on the mention date, being at the registry filing his application contesting it. The consent therefore remained a mere agreement, and the dispute was alive. The court reasoned that consent may be set aside on grounds that would invalidate an agreement, applying Wangechi Kimita v Mutahi Wakibiru, and that where doubts are raised by the very party meant to benefit before adoption, the court must stop and listen. It further held that ADR under Article 159(2)(c) cannot be imposed coercively. Allowing the application, the court directed the parties to fix hearing dates for the main cause. No costs order was made.

Key legal issues

#
01

Setting aside a consent before adoption as judgment

Holding

A consent not yet adopted as a court order may be contested; where the party meant to benefit from the consent raises doubts before adoption, the court must stop and listen to that party.

Reasoning

The court found the consent dated 29th August 2014 had never been adopted as a final order because the claimant was absent on the mention date, having gone to the registry to file his application contesting it. Since the consent had not acquired the status of a court order, the claimant's application contesting it on grounds of duress had a basis and merit and the dispute remained alive for full hearing.

p. 2
02

Duress as a ground for invalidating consent

Holding

Consent is a creature of the agreement on which it is founded and may be set aside on grounds that would invalidate an agreement, including duress, fraud, collusion or misrepresentation.

Reasoning

The claimant alleged he signed the consent under extreme duress arising from financial pressure of paying for his son's cancer treatment abroad. The court held that the grounds which would invalidate an agreement between parties apply to consents, citing Wangechi Kimita v Mutahi Wakibiru, and that such matters must be tested at a full hearing rather than the consent being adopted over the objecting party's objection.

p. 2

Legal principles established

#
  • A consent drawn by parties to settle a dispute already filed in court cannot be effected without an order of the court; before adoption it is not an order of the court and the dispute remains alive.
  • A consent adopted by the court becomes a consent judgment or order with contractual effect and can only be set aside on grounds which would justify setting aside a contract.
  • Article 159(2)(c) requires promotion of alternative dispute resolution, but the court cannot impose an ADR mechanism on a party in a coercive manner.

Court orders

#
  1. 1.The application of the claimant dated 30th September 2013 is allowed
  2. 2.Parties to fix hearing dates for the main cause

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(c)

Cases cited (1)

  • Wangechi Kimita et al versus Mutahi Wakibiru
    [1985] KLR 317
Jurisdiction invoked
Not stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Edward Acholla v Sogea Satom Kenya Branch & 2 others [2014] KEELRC 1498 (KLR)", Case Analysis (2014). Not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1498/eng@2014-12-01

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