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ELRCDismissedN/A (application dated 29th January, 2021)· [2021] KEELRC 1410 (KLR)

Barnabas Otwani Barasa v Principal Secretary Ministry of Interior & Coordination of National Government & 2 others [2021] KEELRC 1410 (KLR)

Employment and Labour Relations Court
29 March 2021
MMM. Mbaru
1,207 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reopen a settled case, confirming consent orders are final unless you can prove fraud or misrepresentation.

What this practically means

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Executive summary

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The claimant, a civil servant in the immigration department, filed an application dated 29th January, 2021 seeking mandamus to compel the 1st and 2nd respondents to comply with court orders issued on 24th February, 2020, to allow him to resume employment, lift his interdiction and release half salary withheld since 12th May, 2017. He narrated that his office was locked in 2015, salary stopped, and that although other immigration officers arrested with him were reinstated and redeployed, he alone remained on interdiction and on half salary, which he termed discriminatory. The respondents opposed through grounds of opposition, arguing the court was functus officio as the matter had been marked settled by consent on 24th February, 2020, when the claimant's counsel confirmed only a calculation error of about Ksh.27,000 remained outstanding. The court examined the consent order of 24th February, 2020, which marked the matter settled and permitted parties to apply in case of any problem. It held that the grievances now raised - non-lifting of the interdiction, withheld salary and discrimination following the claimant's acquittal on 30th January, 2020 - arose before the matter was marked settled and were unrelated to the consent order. Absent fraud, misrepresentation or other untoward conduct, the court could not interfere with a consent order; it stood functus officio and without jurisdiction over extraneous matters. The application was found to be an abuse of court process and dismissed with costs to the respondents on 29th March, 2021.

Key legal issues

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01

Functus officio and re-opening of a settled matter

Holding

Once the matter was marked settled by consent and adopted as a final order, the court could not re-open the claim or entertain further applications absent cogent reasons such as fraud

Reasoning

On 24th February 2020 the parties recorded a consent that the matter be marked settled, and counsel for the claimant confirmed the only outstanding issue was a calculation error of about Ksh.27,000 to be resolved with accountants. The grievances now raised - non-lifting of interdiction, withheld salary and discrimination after acquittal - arose before that date and were unrelated to the consent order. The court therefore lacked jurisdiction to revive the settled claim.

p. 2
02

Abuse of court process

Holding

The application dated 29th January, 2021 amounted to an abuse of process and was dismissed

Reasoning

The claimant sought to re-litigate matters that were within his knowledge when the matter was marked settled, without alleging fraud, misrepresentation or any untoward circumstances surrounding the consent. Aggrievement with a consent order cannot be cured by a fresh application for mandamus; the proper course is outside the present application. The court accordingly dismissed it with costs.

p. 3

Legal principles established

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  • A consent order adopted as the final order of the court cannot be interfered with absent fraud, misrepresentation or other untoward conduct
  • A court that has marked a matter settled by consent becomes functus officio and lacks jurisdiction over extraneous matters

Court orders

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  1. 1.Application dated 29th January, 2021 dismissed as an abuse of the court process
  2. 2.Costs to the respondents
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute; contempt/enforcement of consent order adopted by the court

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, "Barnabas Otwani Barasa v Principal Secretary Ministry of Interior & Coordination of National Government & 2 others [2021] KEELRC 1410 (KLR)", Case Analysis (2021). N/A (application dated 29th January, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1410/eng@2021-03-29

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