Joseph Kipkemboi Tanui v Chief of Defence Forces & 2 others [2019] KEELRC 1523 (KLR)
The bottom line
#A Kenyan court ruled that parties cannot casually back out of a consent order they freely agreed to — you need proof of mistake, coercion, or fraud.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 28.3.2019 could be set aside
It could not; no vitiating factor was proved and the burden lay on the applicants
The court treated the consent order as contractual in nature, settable aside only on proof of mistake, coercion, undue influence or fraudulent misrepresentation. The applicants offered no proof of any such factor; the only inference was that they consented voluntarily or were negligent and sought to cover that negligence through the application.
Whether the intended preliminary objection introduced anything new
No; the points of law (jurisdiction and res judicata) were already pleaded in the Grounds of Opposition and Replying Affidavit
The court compared the intended preliminary objection with the defence filed on 12.3.2019 and found the jurisdictional and res judicata points were already pleaded, with notice also given of an intention to seek striking out and expungement. Substituting one form of defence for another was an afterthought amounting to piecemeal tendering of the same defence.
Whether viva voce hearing should be ordered to allow cross-examination of the petitioner
No sufficient reason was shown for the change of mind
Relying on Kenya Power & Lighting Co Ltd v Kenya Electrical Trades and Allied Workers Union, the court held that a mere change of mind is not a sufficient reason to set aside a consent order and call for viva voce evidence, particularly where no new substantive questions or amendments have arisen.
Legal principles established
#- A consent order has the nature of a contract between the parties and can only be set aside on proof of a vitiating factor, with the burden on the party seeking to set it aside
- A party who knew of a right to object before entering a consent order cannot later reopen the matter as an afterthought; those seeking discretion must act diligently and with clean hands
Court orders
#- 1.The application dated 28.3.2019 is dismissed with costs
- 2.The respondents are directed to comply with the consent directions to file written submissions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the petition; application brought under the Employment and Labour Relations Court (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kipkemboi Tanui v Chief of Defence Forces & 2 others [2019] KEELRC 1523 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1523/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.