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ELRCDismissedNot stated in the judgment· [2019] KEELRC 1105 (KLR)

Esther Mutembei v Oracle Systems Limited [2019] KEELRC 1105 (KLR)

Employment and Labour Relations Court
11 July 2019
HWHellen Wasilwa
1,372 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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Oracle Systems Limited filed a notice of preliminary objection dated 26/11/2018 in a suit brought by its former employee, Esther Mutembei, contending that the suit had been compromised in its entirety by a consent letter dated 04/09/2017 and filed in Court on 13/09/2017, and that the consent was binding on the parties. The Respondent argued that a consent acquires the force of a judgment and can only be varied or set aside on grounds that vitiate a contract such as fraud, collusion, illegality or mistake, and that no application to vary it was before the Court. It further submitted that it had paid Kshs 5 million less statutory deductions of Kshs 1.5 million, relying on authority that lump-sum terminal dues are subject to statutory deductions. The Claimant opposed, relying on Mukisa Biscuits, arguing that the issues were matters of evidence, that the settlement agreement had not been complied with (only Kshs 3.5 million was paid), and that Clause 2.2 made the sum 'all inclusive', with no provision for deductions. She asked the Court to dismiss the objection and enter judgment for the balance of Kshs 1.5 million. Justice Hellen Wasilwa noted the consent letter of 13/9/2017 but observed that parties continued appearing in Court thereafter and stated the matter was not settled, prompting the Court to direct them to take a hearing date. The Court rejected the preliminary objection and ordered the parties to take a hearing date or, alternatively, enter a fresh consent. Costs were awarded in the cause.

Key legal issues

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01

Whether a consent letter that has not been complied with or adopted compromises the suit

Holding

The consent did not bind the parties as a settlement because both parties continued to attend Court and stated the matter was unsettled

Reasoning

The court noted the consent letter filed on 13/9/2017 seeking to mark the suit as settled, but observed that parties continued appearing in Court after its filing, with the Respondent's counsel confirming on 1/2/2018 that no settlement had been reached. The Court had accordingly directed parties to take a hearing date. The Respondent could not then resile and insist the consent stood.

p. 2
02

Whether the preliminary objection raised matters of law or matters of evidence

Holding

The objection was rejected; the dispute over the consent and statutory deductions involved matters going into evidence

Reasoning

The Claimant argued, relying on Mukisa Biscuits, that the grounds in the preliminary objection went to evidence rather than pure points of law, since the settlement agreement had not been complied with and Clause 2.2 made the Kshs 5,000,000 payment 'all inclusive'. The court, focusing on the parties' post-consent conduct, declined to uphold the objection.

p. 2

Legal principles established

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  • A consent filed in court does not constitute a settlement of the suit where the parties continue to appear and indicate the matter has not been settled

Court orders

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  1. 1.The preliminary objection is rejected
  2. 2.The Parties to take a date for hearing of the case as ordered on 13/3/2018 or, in the alternative, enter a fresh consent to be filed before the Court
  3. 3.Costs in the cause

Authorities

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Legislation

  • Employment ActSection 49
  • Industrial Court Act 2011Section 20(1)

Cases cited (8)

  • Mukisa Biscuits Manufacturing Co. Ltd vs. West end Distributors Ltd
    {1969} EA 696
  • John Waruinge Kamau –v- Phoenix Aviation Limited
    [2015] eKLR
  • Pastor Anthony Makena Chege –v- Nancy Wamaitha Magak & Another
    [2015] eKLR
  • Samuel Mbugua Ikumbu vs. Barclays Bank of Kenya Limited
    [2015] eKLR
  • Board of Trustees National Social Security Fund vs. Michael Mwalo
    [2015] eKLR
  • Hassan Nyanje Charo –v- Khatib Mwashetani & 3 others
    [2014] eKLR
  • Directline Assurance Co. Ltd -v- Jeremiah Wachira Ichaura
    [2016] eKLR
  • National Bank of Kenya Ltd –v- Pipe Plastics Sankolit (K) Ltd & Another
    {2001} KLR 112 (2002) EA 503
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; Industrial Court Act 2011, Section 20(1) invoked by the Claimant

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, "Esther Mutembei v Oracle Systems Limited [2019] KEELRC 1105 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1105/eng@2019-07-11

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