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ELRCDismissedPetition No. 52 of 2018· [2021] KEELRC 829 (KLR)

Alfred Indeche v Speaker, County Assembly Vihiga & 2 others;Hudson Dumusu Mungafu (Interested Party) [2021] KEELRC 829 (KLR)

Employment and Labour Relations Court
8 October 2021
RSRADIDO STEPHEN
1,434 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to undo a settlement agreement because the party left out failed to prove others knew he had joined the case.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu (Radido Stephen, MCIARB Judge) determined a Motion by the Interested Party, Hudson Dumusu Mungafu, seeking to set aside a consent dated 4 August 2020 and adopted as a judgment of the Court on 13 August 2020. The consent, recorded between the Petitioner, Hon Alfred Indeche, and the Vihiga County Assembly Respondents, declared that the proceedings of 2 August 2018 for the removal of the Petitioner as County Executive Committee member for Finance and Economic Planning violated Articles 10, 41 and 47 of the Constitution and Standing Order 69(9), marked the matter settled, and directed each party to bear its own costs. The Interested Party, joined ex-parte on 30 June 2020, argued he was excluded from the consent, that the consent was signed by an advocate not properly on record, that there was material non-disclosure to the judge who adopted it, and that a similar petition (Hon Marita Mmoji Agufana) had been dismissed. The Court held the Interested Party had failed to prove service of the joinder order, noting the email used for service contained an erroneous address and the service failed. Applying the principles in Brooke Bond Liebig v Mallya (1975) EA 266, the Court found no fraud, collusion, absence of consensus or other ground to set aside the consent. It further held that, having already given its imprimatur to the consent, it became functus officio. The Motion dated 27 August 2020 was dismissed with costs.

Key legal issues

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01

Whether failure to involve the Interested Party in the consent negotiations warranted setting aside the consent

Holding

No - the Interested Party failed to prove service of the joinder order; the email used for service was erroneous and the service failed

Reasoning

The Court found the email address used by the Interested Party (rekewalaw@gmail.com) differed from the Respondents' advocate's actual address (rakewalaw@gmail.com), and there was no sufficient evidence the Petitioner's advocate's email was used. Without proof of notice of joinder, the consent entered by the substantive parties could not be disturbed.

p. 3
02

Whether the consent was tainted by fraud, collusion or material non-disclosure

Holding

No evidence of fraud, collusion or repudiation was presented

Reasoning

Applying Brooke Bond Liebig v Mallya, the Court held none of the grounds for setting aside a consent judgment existed. The non-disclosure claim relating to the judge adopting the consent during COVID-19 was not substantiated.

p. 3
03

Whether the consent was invalidly signed by an advocate not properly on record

Holding

The signatories were properly on record at the material time

Reasoning

Ms Muguro came on record for the Petitioner on 29 July 2020 and the Principal Legal Counsel filed an Answer to the Amended Petition on 4 August 2020, both before the consent of 4 August 2020; Rule 29 of the Mutunga Rules contemplates recorded settlements with leave of Court, which was given.

p. 3

Legal principles established

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  • A consent judgment may be set aside only on grounds such as fraud, collusion, absence of consensus, public policy, or grounds that would justify rescission of a contract
  • Once a court has adopted a consent settlement, it becomes functus officio
  • A party joined to proceedings bears the duty to extract the joinder order and serve it on the other parties

Court orders

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  1. 1.The Motion dated 27 August 2020 seeking to set aside the consent dated 4 August 2020 and adopted on 13 August 2020 is dismissed
  2. 2.Costs of the Motion awarded to the Petitioner/Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 29
  • Vihiga County Assembly Standing OrdersNo 69(9)

Cases cited (2)

  • Brooke Bond Liebig v Mallya
    (1975) EA 266
  • Hon Marita Mmoji Agufana v Speaker, County Assembly of Vihiga & Ors
    Kisumu Petition No. 53 of 2018
Jurisdiction invoked
Article 23 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights) via the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Alfred Indeche v Speaker, County Assembly Vihiga & 2 others;Hudson Dumusu Mungafu (Interested Party) [2021] KEELRC 829 (KLR)", Case Analysis (2021). Petition No. 52 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/829/eng@2021-10-08

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