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ELRCDismissedCause No. 1351 of 2012· [2015] KEELRC 659 (KLR)

Duncan Odera Ogutu & 5 others v Noah Rotich & 4 others [2015] KEELRC 659 (KLR)

Employment and Labour Relations Court
16 July 2015
MMM. Mbaru
4,268 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court dismissed attempts to overturn a settlement, confirming that a signed consent judgment is binding unless proven fraudulent.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (M. Mbaru, J) ruled on two applications seeking to set aside a consent judgment dated 11th April 2013 that had settled this claim by six claimants against officials of the Union of Kenya Civil Servants. The application dated 14th November 2014, brought through Benson Ambuni, sought rejection of the consent, reinstatement of the orders of 28th September 2012 (which had frozen union accounts, directed an audit and preserved assets) and restraint of amendment of the union constitution. Ogaja Ogaja's application of 6th October 2014, brought in person, sought setting aside of the consents of 29th October 2012 and 11th April 2013, reinstatement of the injunction orders, constitution of a caretaker committee, nullification of the registered constitution, deregistration and declarations of guilt against Respondents 2, 3 and 5. The applicants alleged fraud, bribery and collusion in the settlement, including promises of Kshs.300,000 per claimant and Kshs.3,500,000 in bribes from union funds. The Respondents opposed, contending the consent was contractual, the claimants were represented by counsel, fraud was unproved, and the applications lacked capacity and were res judicata. The court framed five issues, including representation of the claimants. It found all claimants were represented by counsel when the consent was negotiated, signed, filed and confirmed, that alleged bribers were not linked to the Respondents, and that non-enforcement of follow-up activities did not invalidate the consent. Applying Hirani v Kassam and Wasike v Wamboko, the court held the consent could only be set aside in exceptional circumstances not established. Both applications were dismissed, with costs in the cause.

Key legal issues

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01

Whether the consent of 11th April 2013 was vitiated by fraud, collusion or mistake so as to be set aside

Holding

The consent stands; the Claimants were represented by counsel when it was negotiated, signed, filed and confirmed, and the fraud allegations were unproved and unlinked to the Respondents

Reasoning

The court traced the representation history and found all claimants were represented at the material time. Alleged bribery by third parties was not linked to the respondents, and a complaint to Central Police Station had no shown arrest, prosecution or conviction. Non-enforcement or non-fulfilment of follow-up activities does not defeat the validity of an adopted consent order.

p. 6
02

Whether the applicants had capacity to bring the applications

Holding

Benson Ambuni failed to demonstrate representative capacity to file for the other claimants, and Ogaja Ogaja's locus and compliance with notice requirements were questioned

Reasoning

The court found representation was a threshold issue bearing on the applications. The application of 14th November 2014 was filed on behalf of other claimants without demonstrated representative capacity, rendering it incompetent. Ogaja's matters were also said to be res judicata given Cause No. 8 of 2013 Kisumu.

p. 5

Legal principles established

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  • A consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract, such as fraud, mistake or misrepresentation
  • An order made in the presence and with the consent of counsel is binding on all parties and cannot be varied or discharged unless obtained by fraud, collusion, agreement contrary to the policy of the court, or without sufficient material facts

Court orders

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  1. 1.Dismissal of the application dated 14th November 2014
  2. 2.Dismissal of the application dated 6th October 2014
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Labour Relations Actannual returns requirement
  • Civil Procedure CodeRule 23 (notice of change of advocates, as cited by Respondents)
  • Constitution of Kenya 2010provisions on barring persons from public office (as cited by applicant)

Cases cited (7)

  • Kenya Commercial Bank Limited versus Benjoh Amalgamated Limited & Another
    [1998] eKLR
  • Peter Githinji & Another versus Julius Kiruma & 2 Others
    [2015] eKLR
  • Mwakio versus Kenya Commercial Bank Limited
    Civil Appeal No. 28 of 1982
  • Al Jalal Enterprises Ltd versus NIC Bank & Another
    [2010] eKLR
  • Flora N. Wasike versus Destimo Wamboko
    [1982 – 88] I KAR
  • Hirani v. Kassam
    [1952], 19 E.A.C.A 131
  • Greenfield Investments Ltd. v. Baber Alibhai Mwawji
    CA (Nrb) 160/1997
Jurisdiction invoked
Jurisdiction as the employment and labour relations court seized of the claim and the applications to set aside a consent judgment; Labour Relations Act invoked in respect of annual returns

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, "Duncan Odera Ogutu & 5 others v Noah Rotich & 4 others [2015] KEELRC 659 (KLR)", Case Analysis (2015). Cause No. 1351 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/659/eng@2015-07-16

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