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ELRCDismissed· [2016] KEELRC 1432 (KLR)

John Mungai Kariuki v Mumati staff savings and credit co-operative society [2016] KEELRC 1432 (KLR)

Employment and Labour Relations Court
7 April 2016
BOBYRAM ONGAYA
868 words in judgment
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The bottom line

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What this practically means

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Executive summary

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By a consent judgment recorded on 28.07.2015, judgment was entered for the claimant against the respondent for Kshs.1,219,088.00 with costs, plus a 60-day stay of execution. The respondent subsequently moved the court by notice of motion dated 30.11.2015, brought under Order 10 Rule 11, Order 22 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules and sections 1A and 3 of the Civil Procedure Act, seeking to set aside the consent orders, to substitute Kshs.1,024,033.20 for Kshs.195,054.80, and to stay taxation of the claimant's bill of costs. The respondent, through its chief executive officer Rufus Karanja, alleged the consent judgment was entered by error through misrepresentation, counsel for the claimant having failed to disclose deductible taxes. The claimant opposed by grounds of opposition, arguing the court had no power to set aside a consent judgment save on established grounds of fraud, collusion, irregularity or mistake, that the application under Order 10 Rule 11 was fatally defective, and that the substitution prayer was nonsensical. The court identified as the main issue whether it enjoyed jurisdiction to set aside the consent judgment. Following Munyiri v Ndunguya and Samuel Mbugua Ikumbu v Barclays Bank of Kenya Ltd, it held that a consent judgment can only be varied on grounds that would vitiate a contract, pursued by review or a fresh suit, neither of which was before the court. Mistake was not established, and the applicant's own inconsistencies in figures and the character of the deductions barred success. The motion was dismissed with costs to the claimant.

Key legal issues

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01

Jurisdiction to set aside a consent judgment

Holding

The court lacks power to set aside a consent judgment except on grounds justifying vitiation of a contract, pursued through review or a fresh suit; neither was before the court

Reasoning

Relying on Munyiri v Ndunguya and Samuel Mbugua Ikumbu v Barclays Bank of Kenya Ltd, the court reaffirmed that consent judgments may be varied only on grounds such as fraud, collusion, illegality or mistake, and only via review or a fresh suit. No such application was filed, and although mistake was alleged it was not established on the record.

p. 2
02

Establishment of mistake and consistency of the applicant's case

Holding

Mistake was not established; internal inconsistencies in the applicant's prayers and grounds barred success of the application

Reasoning

The court record of 28.07.2015 showed duly authorised advocates recording the consent judgment with signatures endorsed. The applicant's own figures and characterisation of deductions were inconsistent, making it unclear whether the sum claimed was Kshs.1,024,033.20 or that less Kshs.195,088.80, and whether the deduction was tax or statutory deductions.

p. 2

Legal principles established

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  • A court can only interfere with a consent judgment on grounds that would afford good ground for varying or rescinding a contract between the parties, and the remedy is by review or a fresh suit
  • Variation of a consent judgment can only be on grounds that would allow a contract to be vitiated, including fraud, collusion, illegality, mistake, agreement contrary to policy of the court, absence of or ignorance of sufficient material facts

Court orders

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  1. 1.The notice of motion dated 30.11.2015 and filed on the same date is dismissed
  2. 2.The applicant to pay the resultant costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 22 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Actsections 1A and 3

Cases cited (2)

  • Munyiri-Versus-Ndunguya
    [1985]KLR
  • Samuel Mbugua Ikumbu-Versus- Barclays Bank of Kenya Limited
    [2015]eKLR
Jurisdiction invoked
Sections 1A and 3 of the Civil Procedure Act; Orders 10, 22 and 51 of the Civil Procedure Rules (invoked by applicant in the motion)

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 Mungai Kariuki v Mumati staff savings and credit co-operative society [2016] KEELRC 1432 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1432/eng@2016-04-07

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