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ELRCDismissedApplication dated 25th October 2019 in consolidated ELRC Misc. Application Nos. 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 37, 39 & 41 of 2018· [2020] KEELRC 1938 (KLR)

Siganga & Company Advocates v Great Lakes University Kisumu; Equity Bank (Kenya) Limited & another (Garnishee) (Miscellaneous Civil Application 25 of 2018 & Miscellaneous Application 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 39 & 41 of 2018 (Consolidated)) [2020] KEELRC 1938 (KLR)

Employment and Labour Relations Court
30 July 2020
MNMATHEWS N. NDUMA
727 words in judgment
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The bottom line

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Kenya's Employment Court refused to undo a consent order KCB's own lawyer had signed, unless fraud or collusion is proven.

What this practically means

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Executive summary

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In consolidated garnishee proceedings, the Decree Holder and the Judgment Debtor entered a consent on 8th October 2019 compromising applications dated 30th September 2019, settling the judgment debt with no order as to costs. The consent was adopted as an order of the court. The 2nd Garnishee, Kenya Commercial Bank Ltd, filed an application dated 25th October 2019 objecting to the consent order on the ground that it did not cater for KCB's costs. The Judgment Debtor opposed, arguing that KCB had filed no response to the compromised applications by 8th October 2019 and thus had incurred no costs that the consent could have addressed, and that no justifiable grounds for review existed. Mathews N. Nduma, J applied the principle in Board of Trustees of NSSF v Michael Mwalo (2015) EKLr that a court will not interfere with a consent judgment except on grounds that would justify rescinding a contract, such as fraud, collusion, or an agreement contrary to public policy. The court record confirmed that counsel for the 2nd Garnishee was present at the mention and signed the consent on the applicant's behalf. The court found that the applicant completely failed to demonstrate any good reason to review or set aside the consent order, described the application as misconceived and an abuse of process, and dismissed it with costs. The ruling applies to the consent's subject matters, namely ELRC Misc. Application Nos. 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 37, 39 and 41 of 2018.

Key legal issues

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Whether a consent order settling a judgment debt without providing for a third party's (garnishee's) costs can be set aside at that party's instance

Holding

The application was dismissed. The consent order was entered with counsel for the 2nd Garnishee participating and signing; the applicant failed to demonstrate fraud, collusion or any other ground impeaching the consent.

Reasoning

The court adopted the principle that a consent judgment stands unless grounds exist to rescind a contract. The record showed that on 8th October 2019 counsel for all parties, including the applicant, appeared and the consent was dictated and signed on behalf of the 2nd Garnishee by M/s Osewe. The applicant also filed no response to the compromised applications, so no costs had been incurred by it at the time of the consent.

p. 2

Legal principles established

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  • A court will not interfere with a consent judgment except on grounds that would justify varying or rescinding a contract, such as fraud, collusion, or an agreement contrary to the policy of the court.

Court orders

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  1. 1.The application dated 25th October 2019 is dismissed with costs
  2. 2.The ruling applies to the matters the subject of the consent including ELRC Misc. Application Nos. 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 37, 39 and 41 of 2018

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18

Cases cited (1)

  • Board of Trustees of National Social Security Fund – v- Michael Mwalo
    (2015) EKLr
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Section 18 of the Civil Procedure Act (Chapter 21, Laws of Kenya)

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, "Siganga & Company Advocates v Great Lakes University Kisumu; Equity Bank (Kenya) Limited & another (Garnishee) (Miscellaneous Civil Application 25 of 2018 & Miscellaneous Application 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 39 & 41 of 2018 (Consolidated)) [2020] KEELRC 1938 (KLR)", Case Analysis (2020). Application dated 25th October 2019 in consolidated ELRC Misc. Application Nos. 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 37, 39 & 41 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1938/eng@2020-07-30

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