Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNairobi Cause No. 525 of 2019· [2020] KEELRC 583 (KLR)

Kenya Electrical Trades & Allied Workers Union v Kenya Electricity Transmission Company Limited [2020] KEELRC 583 (KLR)

Employment and Labour Relations Court
30 July 2020
OMOnesmus N. Makau
2,161 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 confirmed that once your lawyer agrees to a settlement in court, you are bound by it unless there was fraud, mistake or collusion.

What this practically means

#

Executive summary

#
The Claimant moved the Court by Notice of Motion dated 11th November 2019 under section 12 of the Employment and Labour Relations Act and Rules 17 and 25 of the ELRC Procedure Rules, seeking vacation of the orders and directions made by Judge Onesmus Makau on 23rd October 2019, by which the parties' counsel recorded a consent disposing of the suit by written submissions, and seeking instead that the main suit (Nairobi Cause No. 525 of 2019) proceed to pre-trial and be determined on viva voce evidence. The Claimant, through affidavits of its counsel Cyprian Onyony and Deputy General Secretary Kosgey Kolil, argued it was absent when the consent was recorded, that fraud issues required oral evidence, and that it had a constitutional right to be heard under Article 50(1). The Respondent, through counsel Patrick Lutta, opposed, contending the consent followed negotiations compromising a preliminary objection, that the Claimant was duly represented, and that sufficient material existed for a decision on written submissions. The court framed a single issue: whether the consent order of 23rd October 2019 could be set aside. Applying Flora Wasike v Destino Wamboko and Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd, the court held a consent order is binding like a contract and may only be set aside for fraud, collusion, mistake or an agreement contrary to the policy of the court. A duly instructed advocate has implied authority to compromise, and the Claimant was estopped from disowning the consent on grounds of its absence. The court also found no indication of what oral evidence would be adduced, noting the recognition dispute turns on numbers provable by documents. The application was dismissed with costs to the Respondent.

Key legal issues

#
01

Whether the consent order of 23rd October 2019 could be set aside

Holding

The application to set aside the consent order fails; the consent order stands and the suit proceeds by written submissions

Reasoning

The court applied the settled law that a consent order is binding like a contract and may only be impeached for fraud, collusion, mistake, or agreement contrary to the policy of the court. The claimant was represented by counsel on record who had implied authority to consent, so the claimant was estopped from disowning the consent on the basis of its absence from court. Further, no evidence to be adduced orally was identified, and the core issue (recognition for collective bargaining) turns on numbers provable by documentary evidence.

p. 2

Legal principles established

#
  • A consent order entered into by counsel is binding on all parties and can only be set aside on grounds such as would justify setting aside a contract - fraud, collusion, mistake, or an agreement contrary to the policy of the court
  • A duly instructed advocate has implied general authority to compromise and settle the action, and a client cannot rely on a limitation of that authority unless it was brought to the notice of the other side

Court orders

#
  1. 1.The Notice of Motion dated 11th November 2019 is dismissed with costs to the Respondent

Authorities

#

Legislation

  • Employment and Labour Relations ActSection 12
  • ELRC Procedure RulesRules 17, 25, 21, 28(3)
  • Evidence Act, Cap 80Section 62
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (7)

  • Kenya Ports Authority Vs Fadhil Juma Kisuswa
    (2017) eKLR
  • Richard Ncharpi Leiyagu Vs Independent Electoral and Boundaries Commission & 2 Others
    (2013) eKLR
  • Mbaimai Mukomambo Brighton Vs Attorney General & 2 Others
    (2018) eKLR
  • Timothy Manyara & 144 Others Vs Pyrethrum Board of Kenya
    (2005) eKLR
  • Rosemary Wanjiku Murithi Vs George Maina Ndinwa
    (2014) eKLR
  • Flora Wasike v Destino Wamboko
    (1982 – 1988) 1 KAR 625
  • Kenya Commercial Bank Ltd V Specialised Engineering Co. Ltd
    [1982] KLR 485
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Act and Rules 17 and 25 of the ELRC Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Electrical Trades & Allied Workers Union v Kenya Electricity Transmission Company Limited [2020] KEELRC 583 (KLR)", Case Analysis (2020). Nairobi Cause No. 525 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/583/eng@2020-07-30

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