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ELRCAllowedNotice of Motion dated 1st December, 2015 in the series of Causes Nos. 26 of 2015 to 95 of 2015· [2016] KEELRC 1758 (KLR)

Francis Kimutai Bii v Kaisugu (Kenya) Ltd [2016] KEELRC 1758 (KLR)

Employment and Labour Relations Court of Kenya
28 January 2016
4,133 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling on a Notice of Motion dated 1st December, 2015 by the respondent/applicant seeking, inter alia, to set aside a consent order dated 4th September, 2015 and adopted as a judgment of the Employment and Labour Relations Court on 8th September, 2015, together with all consequential orders, and to extend the orders to the series of causes Nos. 26 to 95 of 2015. The applicant contended that the consent was executed by its Human Resource Officer, Henry Cheruiyot, without authority or capacity, on the strength of misrepresented facts, and that the ensuing bill of costs was unconscionably high; part payment of the decretal sum had already been made. The claimant/respondent opposed, asserting the consent followed genuine negotiations at Sunshine Hotel, Kericho, that payments of Kshs. 1.6 million had been made in installments, and that the application was an abuse of process. The court framed three issues: validity of the consent judgment, sustainability of the replying affidavit sworn by the claimant's counsel Isaac Meroka Oyugi, and the validity of the consent judgment as entered. It struck out the advocate's affidavit, applying authority and Rule 9 of the Advocates Practice Rules against advocates deposing to contentious evidentiary facts. Significantly, the court held, seemingly mero motu, that the consent judgment had been recorded by a Senior Principal Magistrate, George Ong'ondo, who was not an appointed registrar of the court and who in any event lacked power to enter a judgment of the court, that being the province of judges. The consent judgment was thus a nullity recorded per incuriam. The application was allowed in full: the consent judgment and all consequential decrees were set aside, all derived actions were declared null and void, payments made were nullified with a refund ordered within fourteen days, and costs were awarded to the applicant against the claimant/respondent.

Key legal issues

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01

Validity of the consent judgment entered by a person without authority

Holding

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.

Reasoning

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.

p. 7
02

Whether an advocate may swear a replying affidavit deposing to contentious evidentiary facts

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.The orders of court granted in this application apply to causes Nos. 26 of 2015 all the way to 95 of 2015
  3. 3.All actions and or inactions derived from the consent judgement are declared null and void
  4. 4.All payments made by the respondent to the claimants in execution and terms of the consent judgement are nullified
  5. 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. 6.The costs of the application shall be borne by the claimant/respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 162(3)
  • Industrial Court Act, 2011Preamble
  • Industrial Court Act, 2011Section 5(1)
  • Industrial Court Act, 2011Section 9
  • Industrial Court Act, 2011Section 11
  • Industrial Court Act, 2011Section 29
  • Civil Procedure RulesOrder 9 Rule 8(1)
  • Advocates Practice RulesRule 9

Cases cited (6)

  • Flora Wasike Vs Destino Wamboko
    (1982-88) 1 KAR
  • Nicholas Kipchirchir Kimaiyo vs Wilson Kibet Kimutai & Another
    (2014) eKLR
  • Barrack Ofulo Otieno vs Instarect Limited
    (2015) eKLR
  • Regina Waithira Mwangi Gitau vs Boniface Nthenge
    (2015) eKLR
  • Simon Isaac Ngugi Vs. Overseas Courier Services (K) Ltd
    1998 eKLR
  • Kisya Investments Ltd & Others Vs Kenya Finance Corporation Ltd
Jurisdiction invoked
Article 162(2)(a) and 162(3) of the Constitution; Industrial Court Act, 2011

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, "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.