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ELRCDismissedNot stated in the judgment· [2019] KEELRC 276 (KLR)

John Ochanda & 996 others v Telkom Kenya Limited [2019] KEELRC 276 (KLR)

Employment and Labour Relations Court
22 November 2019
MOMaureen Onyango
1,986 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed ten former claimants' attempt to switch lawyers and revive a settled Telkom case because they could not prove they were parties to the original settlement.

What this practically means

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Executive summary

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This was a Notice of Motion filed on 9th July 2019 by ten persons (Selestine A. Mboss and nine others) seeking leave for the firm of Ng'ania and Company Advocates to come on record for them in place of Letangule and Company Advocates, in a matter that had been settled by a consent order adopted as a judgment of the court on 15th December 2015, under which Telkom (Kenya) Limited agreed to pay claimants Kshs.500,000,000. The applicants said they had not been paid; the respondent opposed, arguing the applicants were never parties to the suit or the consent, not being listed in Schedule A, and that no authority was filed for the supporting affidavit sworn by Stephen Kerandi Oyando. The original claimants also opposed, saying the consent had compromised the entire suit and settlement amounts were paid in 2016. The court framed two issues: whether the deponent had authority to swear the affidavit, and whether the incoming firm could come on record. On the first, applying the Court of Appeal's decision in Research International East Africa Ltd v Julius Arisi, the court held the application was not defective for lack of written authority, but the deponent had to obtain the other applicants' consents. On the second, the court found the applicants had failed to prove they were parties to the suit - the claimant numbers their counsel cited corresponded to different names on the settlement lists - and that setting aside the consent would require proof of fraud, collusion, misapprehension of material facts or other sufficient good. There was also no consent from the outgoing firm. The application was dismissed on 22nd November 2019, with no costs order recorded.

Key legal issues

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01

Authority of the deponent to swear the supporting affidavit

Holding

The application was not defective for lack of written authority, but the deponent can only swear for himself until he obtains and files the consents of the other applicants

Reasoning

Order 1 Rule 13 of the Civil Procedure Rules and Rule 9(2) of the ELRC Procedure Rules require written authority signed by the parties giving it and filed in the case. No such authority was filed, so the deponent could only swear for himself. However, following Research International East Africa Ltd v Julius Arisi, the court has discretion not to strike out for such a defect but to allow the parties to remedy it.

p. 3
02

Whether the incoming firm could come on record under Order 9 Rule 9(a)

Holding

The application failed because the applicants did not prove they were parties to the suit and because the outgoing firm's consent was not obtained

Reasoning

Order 9 Rule 9(a) requires an application with notice to all parties after judgment. The court compared the claimant numbers cited by counsel with the settlement lists on file and found the numbers corresponded to different names, so the applicants failed to prove they were parties to the consent. Further, a consent judgment can only be set aside on proven preconditions, none of which was established, and Letangule and Company Advocates had not consented to the change.

p. 3

Legal principles established

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  • A court has discretion not to strike out a suit where a verifying or supporting affidavit was sworn without authority of other plaintiffs, but may allow the parties to remedy the defect by complying with the rules
  • A consent judgment can only be set aside upon proof of preconditions such as fraud, collusion, agreement contrary to policy, misapprehension or ignorance of material facts, or other sufficient good
  • After judgment, a change of advocate cannot take effect without an order of the court made upon application with notice to all parties and consent of the outgoing advocate

Court orders

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  1. 1.The application is dismissed

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 9(a) and 9(b)
  • Civil Procedure Rules, 2010Order 1 Rule 13
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 9(2)

Cases cited (3)

  • Suraya Property Group and another v W&K Estates Ltd & 2 Others
    [2019] eKLR
  • Hezekia Kipkorir Maritim & 10 others v Philip Kipkoech Tenai & 2 Others
    [2016] eKLR
  • Research International East Africa Ltd V Julius Arisi & 213 Others
    [2007] eKLR, Nairobi Civil Appeal No. 321 of 2003
Jurisdiction invoked
Order 9 Rule 9(a) of the Civil Procedure Rules, 2010 and Rule 9(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016

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 Ochanda & 996 others v Telkom Kenya Limited [2019] KEELRC 276 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/276/eng@2019-11-22

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