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ELRCDismissedNot stated in judgment (Industrial Court claim filed 30th July 2013)· [2015] KEELRC 788 (KLR)

John Waruinge Kamau v Phoenix Aviation Limited [2015] KEELRC 788 (KLR)

Industrial Court of Kenya
16 June 2015
4,490 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 refused to undo a settlement a worker regretted, confirming consent judgments are binding unless fraud, coercion, mistake or misrepresentation is proved.

What this practically means

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Executive summary

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The claimant, who had sued for unlawful termination and discrimination quantified at Kshs 2,487,850, moved the Industrial Court by Notice of Motion dated 7th November 2014 seeking leave for Okemwa & Company Advocates to come on record and for the setting aside of a consent judgment dated 9th October 2014 and adopted on 4th November 2014, under which he had accepted four months' salary (Kshs 369,607.60) plus Kshs 50,000 costs, with withdrawal of the discrimination claim. He alleged his former advocates, Koceyo & Company, recorded the consent without instructions. The respondent maintained the consent was valid, negotiated with the claimant's knowledge, and that the court was functus officio and the application an abuse of process. Koceyo & Company filed submissions asserting the claimant's knowledge and authority, including his email of 4th October 2014 deferring to the advocate's advice. The court, Maureen Onyango J, held that a consent judgment once adopted has the force of a judgment and may be set aside only on grounds justifying rescission of a contract: fraud, coercion, mistake or misrepresentation. The claimant failed to prove any of these, and his email of 4th October 2014 conferred ostensible authority on his advocate. The argument that the consent infringed constitutional rights failed: the agreement was a compromise of the right, not a breach, and no constitutional violation was pleaded. However, the court rejected the functus officio and abuse-of-process objections, holding the Industrial Court has power to set aside and review its decisions. The application was dismissed, the Kshs 50,000 was ordered released to Koceyo & Company Advocates, and each party was ordered to bear its own costs.

Key legal issues

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01

Threshold for setting aside a consent judgment

Holding

The claimant failed to meet the threshold; no misrepresentation, mistake, coercion or breach of express instructions was proved

Reasoning

The court held that consent orders are contractual in nature and can only be set aside on grounds justifying rescission of a contract. The claimant admitted meeting his advocate on 1st October 2014 and emailing on 4th October 2014 authorising settlement. No withdrawal of instructions was produced before adoption of the consent on 4th November 2014. An improvident bargain alone is not a ground for interference.

p. 6
02

Ostensible authority of an advocate to compromise

Holding

The advocate had ostensible authority based on the claimant's email entrusting the matter to his professional judgment

Reasoning

The email of 4th October 2014 stated the claimant would go by the advocate's advice as settlement was his area of speciality. The court held the respondent properly acted on the consent and had already deposited the agreed sum with its advocates for transmission. The alleged misrepresentations were not material misrepresentations in law.

p. 7
03

Functus officio and abuse of process

Holding

The court was not functus officio and the application, though unsuccessful, was not an abuse of process

Reasoning

The respondent argued the court could not interrogate its own decision. The court rejected this, holding the Industrial Court Act and Rules confer power to set aside and review its decisions. However, the claimant's application failed on merit as it did not meet the threshold for setting aside consent judgments.

p. 7

Legal principles established

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  • A consent judgment, once adopted by the court, acquires the force and effect of a judgment and may only be set aside on grounds that would justify setting aside a contract, such as fraud, coercion, mistake or misrepresentation
  • An advocate has ostensible authority to compromise a client's case where the client has entrusted the matter to the advocate's discretion
  • The Industrial Court is not functus officio after adopting a consent judgment, as it has jurisdiction to set aside and review its decisions, and seeking such review is not per se an abuse of process
  • A consent agreement compromising a discrimination claim is a compromise of the right, not a breach of it, and cannot be declared a nullity where no constitutional rights were pleaded in the claim

Court orders

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  1. 1.The claimant's application dated 7th November 2014 is dismissed
  2. 2.The sum of Kshs 50,000/= held by the respondent's advocates to be released to Koceyo & Company Advocates
  3. 3.Each party shall bear its own costs of the application

Authorities

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Legislation

  • Industrial Court ActSections 12 and 16
  • Constitution of Kenya, 2010Articles 159(2)(d), 162(2), 25(c), 27(1), (4) and (5), 28, 37
  • Civil Procedure RulesNot applicable to this court (as submitted)

Cases cited (16)

  • Mike Sonko Gideon Kioko Vs A. G & 8 Others
    Petition No. 285 of 2013
  • Mula International Ltd Vs His Eminence Cardinal Nsubuga & Another
    (1982) HCB11
  • Albert Rutiri & Others Vs The Minister for Finance & Another
    HC Misc. Appl. No. 980 of 2001
  • Otieno Mak'Onyango Vs Attorney General
    [2012] eKLR
  • Diamond Trust Bank V Ply Panels Ltd & Others
  • Samson Ole Tina V Clerk, Trans Mara County Council
    [2010] eKLR
  • Republic V District Land Registrar & Another Ex-Parte Kiprono Tegeri & Another
    [2005] eKLR
  • Agrafin Management Services Ltd V Agricultural Finance Corporation & 5 Others
  • Brooke Bond Liebig Ltd V Mallya
    (1975) E.A 266
  • Flora Wasike V Destino Wamboko
    (1982-88) 1 KAR
  • Waigh V HB Clifford & Sons
    [1982] Ch. 374
  • Kenya Commercial Bank Ltd V Specialized Engineering Company Ltd
    [1982] KLR 485
  • Ismail Surnderji Hirani V Noorali Esmail Kassam
    (1952) 19 EACA 131
  • Ngugi Vs Kinyanjui
    (1989) KLR 146
  • Peter George Anthony D'costa V Attorney General and Another
    Nairobi Petition No. 83 of 2010 (unreported)
  • Raila Odinga & Others V IEBC & Others
    [2013] eKLR
Jurisdiction invoked
Sections 12 and 16 of the Industrial Court Act; Articles 159(2)(d) and 162(2) of the Constitution

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, "John Waruinge Kamau v Phoenix Aviation Limited [2015] KEELRC 788 (KLR)", Case Analysis (2015). Not stated in judgment (Industrial Court claim filed 30th July 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/788/eng@2015-07-07

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