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ELRCAllowedMotion dated 26th February, 2016 (in the substantive employment suit)· [2016] KEELRC 472 (KLR)

Amanya Raphael Anabaswa v Mumias Sugar Company Limited [2016] KEELRC 472 (KLR)

Employment and Labour Relations Court
8 September 2016
MOMAUREEN ONYANGO
1,834 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court set aside a consent judgement on retirement age because both parties wrongly believed the employee was a registered person with disability.

What this practically means

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Executive summary

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The Applicant, the Respondent in the substantive employment suit, moved the court by a notice of motion dated 26th February 2016 under Order 42 Rule 7 and Order 51 Rule 4 of the Civil Procedure Rules seeking to set aside consent orders adopted on 15th October 2014, under which the Claimant would not be retired until attaining 60 years with all privileges under the Persons With Disabilities Act. The consent followed a medical assessment of 6th June 2014 recommending the Claimant for registration as a person with disability. Following a reassessment of employees in October 2015 in which the Claimant was found to have no disability, the Applicant argued the consent was founded on mutual mistake. The Claimant opposed, contending the court was functus officio, the matter res judicata, the reassessment a fabrication, and that his disability certificate remained valid. The court framed one issue: whether the consent order was based on mutual mistake or other ground justifying setting aside. It held that a medical assessment form is not proof of registration as a PWD; the Claimant had neither an application for registration nor a disability identity card, and had therefore not proved registration with the National Council for Persons with Disability. Both parties had laboured under a mistaken belief as to the Claimant's entitlement to retire at 60, a mistake material to the consent, which as a contract-like pact could be set aside. The application succeeded; the consent judgement of 15th October 2014 was set aside, with each party bearing its own costs of the application.

Key legal issues

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01

Whether the consent order of 15th October, 2014 was based on a mutual mistake justifying setting aside

Holding

Yes. Both parties were mistaken in believing the Claimant was registered as a person with disability entitled to retire at 60; a medical assessment form is not proof of registration, so the consent judgement was founded on a fundamental mistaken assumption.

Reasoning

The court distinguished between a medical assessment form, which only recommends qualification for registration, and actual registration with the National Council for Persons with Disability evidenced by a disability identity card. Since the Claimant presented only the assessment form, he had not proved registration. The consent order rested on the shared mistaken belief that he was entitled to the s.15(6) retirement benefit, a mistake material to both parties' agreement, warranting setting aside as in contract.

p. 4

Legal principles established

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  • A consent judgement/order may be set aside where it was founded on a mutual mistake, as a consent order assumes the character of a contract.

Court orders

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  1. 1.The consent judgement recorded by the parties in court on 15th October, 2014 is set aside
  2. 2.Each party shall bear its costs of the application

Authorities

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Legislation

  • Civil Procedure ActOrder 42 Rule 7; Order 51 Rule 4
  • Persons With Disabilities Actsection 15(6)

Cases cited (3)

  • Flora Wasike v Destino Wamboko
    (1988) 1 KLR 429
  • Jacob Juma v Rosaline Wanjiru
    [2009] eKLR
  • Hassanali Holdings v Citizen Cinema Corporation Limited
    [2005] eKLR
Jurisdiction invoked
Order 42 Rule 7 and Order 51 Rule 4 of the Civil Procedure Rules (under the Civil Procedure Act) and the court's inherent jurisdiction over its own interlocutory consent orders

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, "Amanya Raphael Anabaswa v Mumias Sugar Company Limited [2016] KEELRC 472 (KLR)", Case Analysis (2016). Motion dated 26th February, 2016 (in the substantive employment suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/472/eng@2016-09-08

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