Dorothy Vivian Atieno Ogutu v Mumias Sugar Company Limited [2016] KEELRC 423 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to set aside the consent order selecting the suit as a test suit
- 2.Whether invocation of sections 1A, 1B and 3A of the Civil Procedure Act was a fatal mis-provision
- 3.Whether the Respondent proved want of authority/absence of instructions of its previous counsel to enter the consent
- 4.Whether the threshold for setting aside a consent order was met, including whether the unexplained delay defeated the application
Key legal issues
#Jurisdiction of the ELRC to set aside consent orders
The court has jurisdiction; section 12(3)(viii) confers wide powers and Rule 27(1) permits any other order to meet the ends of justice.
The court held that section 12(3)(viii) gives it power to grant any other appropriate relief, Rule 27(1) allows orders to meet the ends of justice, and sections 16 and Rule 32 provide for review. The Claimant's contention that the court lacked jurisdiction under sections 12 and 16 of the ELRC Act was rejected.
Invocation of the court's powers under the wrong statutory provisions (ss.1A, 1B, 3A CPA)
Not fatal; Article 159 of the Constitution and section 20(1) of the ELRC Act require the court to act without undue regard to technicalities.
Relying on Mawji v Arusha General Store as adopted in Brooke Bond Liebig v Mallya, the court held that procedural rules are directory; non-compliance which causes no injustice does not vitiate proceedings. The Claimant did not show any injustice from the wrong provisions being cited.
Whether the consent selecting the suit as a test suit should be set aside for want of counsel's authority
No; the Respondent failed to meet the threshold for setting aside consent orders.
Five senior officers of the Respondent attended throughout the proceedings; the deponent was not in court and could not depone to the recording of the consent; no instructions were produced showing counsel acted contrary to express negative directions; no fraud, collusion, mistake or misapprehension of material facts was established. Delay of about 124 days was also unexplained.
Legal principles established
#- A consent order or judgement made with the consent of counsel, once adopted by the court, becomes a binding judgement of the court and may only be set aside on grounds of fraud, collusion, agreement contrary to the policy of the court, or consent given without sufficient material facts or in misapprehension or ignorance of material facts.
- An application for review or setting aside must be made against a formal order which is extracted and attached to the application; otherwise the court has no reference upon which to exercise its discretion.
- An advocate on record has ostensible authority to compromise a suit or consent to judgement so far as the opponent is concerned.
Court orders
#- 1.The Respondent's Notice of Motion dated 27th May 2016 is dismissed
- 2.Costs of the application to the Claimant
- 3.Prayer 3 (re-opening of the Respondent's case) had been dealt with by consent of 13th June 2016 on payment of thrown away costs of Shs.20,000 — the only live prayer was prayer 4
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 12, 16 and 20(1) of the Employment and Labour Relations Court Act; Rule 27(1) and Rule 32 of the Court's Rules; Article 159 of the Constitution
Relief refused
#Setting aside the consent order selecting Cause 77 of 2015 as a test suit and allowing the Respondent to call a further defence witness (prayer 4)
Application brought in the wrong file; the orders sought to be set aside were not extracted and attached; delay unexplained; threshold for setting aside consent orders not met as no want of authority of erstwhile counsel was proved
Costs
The application is dismissed with costs to the Claimant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that the application is dismissed with costs to the Claimant.
I find that the Respondent has failed to meet the threshold for setting aside consent orders.
A consent judgement or order made with the consent of counsel once adopted by the court becomes a binding judgement and order of the court and may only be set aside on grounds of fraud or collusion, or if the agreement is contrary to the policy of the court.
both Article 159 of the Constitution and section 20(1) of the Act provide that this court shall act without undue regard to technicalities.
Issues in the judgment
#The consent order selecting the suit as test suit was recorded in a different file; the court noted the orders were not made in this file nor extracted and attached
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dorothy Vivian Atieno Ogutu v Mumias Sugar Company Limited [2016] KEELRC 423 (KLR)", Case Analysis (2016). Cause No. 77 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/423/eng@2016-09-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.