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ELRCOtherCause No 915 of 2015· [2016] KEELRC 55 (KLR)

Mohamed Bare & 48 others v Kenya Rural Roads Authority [2016] KEELRC 55 (KLR)

Employment and Labour Relations Court
2 September 2016
2,354 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A signed settlement in an employment dispute is not binding until a judge formally adopts it, so workers could change lawyers and take their claim to trial.

What this practically means

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Executive summary

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The Claimants, employees of the Respondent, applied by notice of motion dated 31st May 2016 seeking leave for M/s Lumumba & Lumumba Advocates to come on record in place of Tengo Madara & Co. Advocates, and an order setting aside or varying a consent said to have been entered on 14th April 2016 by their former advocates without their authority, so that the suit could proceed to full trial. They alleged the consent was entered fraudulently, secretly and in breach of instructions, and included a demotion from Job Group 5 to Job Group 3 and payment of Kshs.2,512,267.00 as costs to the advocate. The Respondent opposed, maintaining the consent was lawfully entered into with an advocate it believed had authority, that the Claimants had received sums between Kshs.800,000.00 and Kshs.950,000.00 without objection, and that the consent was binding under the principles in the Kenya Commercial Bank v Benjoh Amalgamated decision. The court framed three issues: substitution of advocates, setting aside the consent, and trial of the suit. It held that a consent agreement only becomes an order of the court once domesticated, approved and reduced into the court record, and that the consent filed on 19th April 2016 was never adopted by the court. No consent order or judgement therefore existed to be set aside. The court allowed the Claimants to change advocates and directed that the main claim be set down for hearing, with payments already received to be taken into account.

Key legal issues

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01

Whether a filed consent agreement constitutes a consent order or judgement capable of being set aside

Holding

The consent filed on 19th April 2016 was never adopted or reduced into an order of the court and therefore no consent order or judgement exists in law; there is nothing to set aside

Reasoning

The court held that under the Employment and Labour Relations Court (Procedure) Rules, 2016, an order is valid only upon issuance by the Judge of the court. Although the consent was filed on 19th April 2016, there was no record of the parties attending court to have it confirmed and adopted. The dully executed written consent only becomes a court order the moment it is domesticated and approved by the court. Consequently the application to set aside the consent was misconceived as no such order existed.

p. 4
02

Whether the Claimants should be allowed to change advocates

Holding

Since the suit is still pending without final orders or judgement, the Claimants are at liberty to change their advocates

Reasoning

The application to substitute M/s Lumumba & Lumumba Advocates for Tengo Madara & Co. Advocates was made under the mistaken belief that a valid consent order existed. Because no such order exists and the matter remains pending and unresolved, the Claimants are free to change representation while the claim is pending. The court noted the averment that the Claimants received part of the dues, which should be taken into account at the hearing of the main claim.

p. 4
03

Whether the suit should proceed to full trial

Holding

The main claim is to be set down for hearing and final determination, with payments already received by the Claimants to be taken into account

Reasoning

Since the consent never matured into an order of the court, the matter remains pending and unresolved until the court enters judgement or makes final orders. The court directed that the main claim be set for hearing. The court further noted the Respondent's averment that the Claimants received sums between Kshs.800,000.00 and Kshs.950,000.00, directing that such payments be put into account when the matter comes for hearing.

p. 4

Legal principles established

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  • A consent agreement filed by parties does not become an order or judgement of the court until it is adopted, confirmed and reduced into the court record by the judge
  • A consent order or judgement made in the presence and with the consent of counsel is binding on all parties and can only be set aside on grounds of fraud, collusion or misrepresentation

Court orders

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  1. 1.The Claimants are at liberty to change their advocates while the suit/claim remains pending
  2. 2.The main claim is to be set down for hearing and final determination by the court

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 28

Cases cited (5)

  • Kenya Commercial Bank Limited versus Benjoh Amalgamated Limited & Another
    Civil Appeal No.276 of 1997
  • Kuwinda Rurinja Co. Ltd versus Kuwinda Holdings Ltd & 13 Others
    [2013] eKLR
  • Kassmir Wesonga Ongoma et al versus Ismael Otoicho Wanga
    Civil Appeal No.25 of 1986 [1987] KLR
  • Simon Ayiemba versus Kenya Industrial Estate Ltd Busia
    HCCC Civil Appeal No.5 of 2001
  • Nahashon Firtwanga versus Environment Disaster Research Foundation
    HCCC No.20 of 1999 (Mombasa)
Jurisdiction invoked
Employment and Labour Relations Court established under Article 162(2) of the Constitution (implied from the court's jurisdiction over employment and labour relations claims; not expressly cited in the judgment)

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, "Mohamed Bare & 48 others v Kenya Rural Roads Authority [2016] KEELRC 55 (KLR)", Case Analysis (2016). Cause No 915 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/55/eng@2016-09-02

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