Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment as provided· [2019] KEELRC 1523 (KLR)

Joseph Kipkemboi Tanui v Chief of Defence Forces & 2 others [2019] KEELRC 1523 (KLR)

Employment and Labour Relations Court
24 May 2019
2,334 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
This interlocutory ruling of the Employment and Labour Relations Court at Nairobi (Makau J) determined a Notice of Motion dated 28.3.2019 filed by the respondents, who are facing a petition by a former serviceman alleging unfair termination contrary to Article 47 of the Constitution. On 28th March 2019 the parties had, by consent, agreed to dispense with oral hearing and dispose of the petition by written submissions. The respondents then sought to set aside those consent orders, to have the petition heard viva voce, and to substitute their Grounds of Opposition with a Notice of Preliminary Objection raising lack of jurisdiction and res judicata, alleging that the petitioner's supporting documents were classified military records. The petitioner opposed, contending the application was an afterthought lacking evidence of changed circumstances. The court held that a consent order has the nature of a contract and can only be set aside on proof of mistake, coercion, undue influence or fraudulent misrepresentation, a burden the applicants failed to discharge. Comparing the intended preliminary objection with the defence already on file, the court found nothing new was being introduced: the jurisdictional and res judicata points, and notice of an intention to seek expungement of the classified documents, were already pleaded. The proposed substitution of one form of defence for another was held to be novel and not provided for under the applicable procedural rules. Relying on James Kamangu Ndimu and Kenya Power & Lighting Co Ltd, the court dismissed the application with costs and directed the respondents to comply with the consent directions and file written submissions.

Key legal issues

#
01

Whether the consent order of 28.3.2019 could be set aside

Holding

It could not; no vitiating factor was proved and the burden lay on the applicants

Reasoning

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.

p. 2
02

Whether the intended preliminary objection introduced anything new

Holding

No; the points of law (jurisdiction and res judicata) were already pleaded in the Grounds of Opposition and Replying Affidavit

Reasoning

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.

p. 3
03

Whether viva voce hearing should be ordered to allow cross-examination of the petitioner

Holding

No sufficient reason was shown for the change of mind

Reasoning

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.

p. 3

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. 1.The application dated 28.3.2019 is dismissed with costs
  2. 2.The respondents are directed to comply with the consent directions to file written submissions

Authorities

#

Legislation

  • Constitution of KenyaArticle 47
  • Employment and Labour Relations Court (Procedure) Rules 2016Rules 21 and 25
  • Civil Procedure Rules 2010Not specified
  • Constitution of Kenya (Protection of Rights and Fundamental freedoms) Practice and Procedure Rules 2013Not specified

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 69
  • Stephen Kimotho & 7 Others v Attorney General & Others
    [2006] eKLR
  • James Kamangu Ndimu v Margaret Wanjiru Ndimu & Another
    [2007] eKLR
  • Kenya Power & Lighting Company Limited v Kenya Electrical Trades and allied Workers Union
    [2017] eKLR
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.