Francis Kimutai Bii v Kaisugu (Kenya) Ltd [2016] KEELRC 1758 (KLR)
The bottom line
#A Kenyan employment court threw out a consent judgment because an unauthorized officer signed it and a magistrate without jurisdiction recorded it.
What this practically means
#Executive summary
#Key legal issues
#Validity of the consent judgment entered by a person without authority
The consent judgment dated 4th September, 2015 and adopted on 8th September, 2015 was set aside as invalid: it was executed by the applicant's Human Resource Officer without authority, all cardinal parties disowned it, and it was recorded by a Senior Principal Magistrate who was not an appointed registrar and had no jurisdiction to enter a judgment of that court.
The court found that the consent was signed by Henry Cheruiyot, who lacked capacity or authority, and that both he and Mr. Morintat disowned it, grounding invalidity in mistake, misrepresentation or fraud. Separately, the consent was recorded by a Senior Principal Magistrate who was neither an appointed registrar nor deputy registrar under Section 9 of the Industrial Court Act; even a deputy registrar could not enter a judgment of the court, that being strictly the province of judges. The judgment was thus entered per incuriam by a stranger.
Whether an advocate may swear a replying affidavit deposing to contentious evidentiary facts
The replying affidavit of Isaac Meroka Oyugi, counsel for the claimant/respondent, was struck out as incompetent because it deposed to contentious matters of fact in a matter in which he was appearing as advocate.
Relying on the line of authorities presented by the applicant (Kimaiyo, Otieno, Gitau, Ngugi and Kisya Investments) and Rule 9 of the Advocates Practice Rules, the court held it is improper for an advocate to depose to evidentiary facts in a contentious matter, making himself a witness in a case he conducts as agent. The court was persuaded to follow these authorities and struck out the affidavit of 4th December, 2015.
Legal principles established
#- A consent judgment may be set aside on grounds that would justify setting aside a contract, such as fraud, mistake or misrepresentation
- Entry of a judgment of the Employment and Labour Relations Court is strictly the province of its judges; recording such a judgment by a person without the requisite authority, competency and jurisdiction renders it a nullity
- The Registrar and officers of the Employment and Labour Relations Court perform only administrative functions and cannot enter judgments of the court
Court orders
#- 1.The judgement arising out of the consent dated 4th September, 2015 and adopted as a judgement of court on 8th September, 2015 and all decrees and orders arising thereof are set aside
- 2.The orders of court granted in this application apply to causes Nos. 26 of 2015 all the way to 95 of 2015
- 3.All actions and or inactions derived from the consent judgement are declared null and void
- 4.All payments made by the respondent to the claimants in execution and terms of the consent judgement are nullified
- 5.A refund of all payments in respect of the consent judgement made by the respondent to the claimant shall be made by the claimant within fourteen (14) days of the orders
- 6.The costs of the application shall be borne by the claimant/respondent
- Jurisdiction invoked
- Article 162(2)(a) and 162(3) of the Constitution; Industrial Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kimutai Bii v Kaisugu (Kenya) Ltd [2016] KEELRC 1758 (KLR)", Case Analysis (2016). Notice of Motion dated 1st December, 2015 in the series of Causes Nos. 26 of 2015 to 95 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1758/eng@2016-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.