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ELRCDismissedNot stated in the judgment· [2018] KEELRC 2434 (KLR)

Christine Atieno Opiyo v Michelle Anyango & another [2018] KEELRC 2434 (KLR)

Employment & Labour Relations Court
16 February 2018
577 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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This is a ruling of the Employment & Labour Relations Court on an application to set aside a consent order made on 8th September 2016, by which the deceased plaintiff, Christine Atieno Opiyo, was substituted by her daughters and beneficiaries, Winnie Achieng Opiyo and Nelly Awuor Opiyo. The consent had been entered by counsel for both parties on the strength of a limited grant of letters of administration issued in the High Court succession cause. The applicant sought to set the consent aside, asserting that counsel for the Respondent mistakenly gave wrong instructions to the court clerk and that the Respondents at all material times wished to oppose the substitution, arguing the 2012 suit had taken too long and should not be revived. The applicant relied on Bhupinder Singh Dogra v Coast Development Authority, which in turn cited Flora N. Wasike v Destimo Wamboko, for the settled position that a consent judgment can only be set aside on grounds that would justify setting aside a contract, such as fraud, mistake or misrepresentation. The court found no affidavit by the advocate concerned alleging mistake, fraud or misrepresentation, and noted that the consent was founded on the limited grant, without which substitution would not have been granted. It held the application dilatory and intended to frustrate the beneficiaries. The application was dismissed with costs, the suit was directed to be heard on merits on a priority basis, and the file was to be placed before the Principal Judge for allocation of a hearing date.

Key legal issues

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01

Whether a consent order can be set aside on the ground that counsel mistakenly gave wrong instructions

Holding

The application fails; no evidence of mistake, fraud or misrepresentation was tendered, and the consent was lawfully founded on the limited grant of letters of administration

Reasoning

The court applied the settled test in Flora N. Wasike v Destimo Wamboko that a consent judgment may be set aside only on grounds justifying setting aside a contract, such as fraud, mistake or misrepresentation. The 1st Respondent's affidavit asserted lack of instructions, but no affidavit was sworn by the advocate who consented. The consent was in fact anchored on the limited grant issued in the succession cause, without which substitution could not have been granted. The application was therefore dilatory and an attempt to frustrate the deceased's beneficiaries.

p. 1
02

Whether substitution of a deceased plaintiff by her beneficiaries was properly granted by consent

Holding

The substitution was properly granted on the basis of the limited grant of letters of administration issued to the two daughters

Reasoning

The consent of 8th September 2016 was entered by both advocates and was founded on the Letters of Administration (Limited Grant) issued in the succession cause, which was before the court. Without that grant the court would not have allowed substitution. The applicant's opposition that the suit had taken too long was held to be a dilatory tactic meant to frustrate the beneficiaries of the deceased plaintiff.

p. 2

Legal principles established

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  • A consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract, such as fraud, mistake or misrepresentation
  • An allegation of mistake by counsel must be supported by evidence, including an affidavit from the advocate concerned

Court orders

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  1. 1.The application to set aside the consent order is dismissed with costs
  2. 2.The suit to be heard on merits on priority basis, it being a 2012 matter
  3. 3.The matter to be placed before the Principal Judge Employment & Labour Relations Court for allocation of a hearing date

Authorities

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Cases cited (2)

  • Bhupinder Singh Dogra v Coast Development Authority
    Mombasa HCCC No.158 of 2003
  • FLORA N. WASIKE Vs DESTIMO WAMBOKO
    (1982-88) I KAR
Jurisdiction invoked
Inherent jurisdiction of the court over its own consent orders in a suit before it (not expressly cited in the judgment)

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, "Christine Atieno Opiyo v Michelle Anyango & another [2018] KEELRC 2434 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2434/eng@2018-02-16

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