Mayaka v Omaera Pharmaceuticals Limited (Cause 2176 of 2016) [2023] KEELRC 305 (KLR)
The bottom line
#An ELRC judge in Nairobi set aside a consent judgment after the claimant proved his lawyer recorded it despite his written instruction not to settle.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent judgment recorded by the claimant's former counsel without instructions should be set aside
Yes. The claimant's email of 6th December 2021 constituted an express negative instruction to his counsel not to settle, and there was no evidence of subsequent instructions permitting a consent. The former counsel did not act bona fide.
The court found that on 6th December 2021 the claimant rejected the respondent's offer and instructed his counsel to proceed to full trial, and counsel agreed in writing. No material showed the instructions were later changed. While a duly instructed advocate has implied authority to compromise, that authority is lost where the compromise contradicts express negative instructions or is not bona fide. Recording the consent despite those instructions was a fit case for setting it aside.
Legal principles established
#- A consent judgment has contractual effect and can only be set aside on grounds that would justify setting aside a contract, such as fraud, collusion, illegality or absence of sufficient material facts
- An advocate has implied general authority to compromise a suit, but that authority is qualified where the compromise is contrary to express negative instructions of the client or is vitiated by fraud or collusion
Court orders
#- 1.The consent judgment entered on December 15, 2021 is set aside
- 2.The matter shall proceed to be heard on merit, the hearing to start from where it was left
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the ELRC; application brought under sections 3, 3A and 63(e) of the Civil Procedure Act and Order 9 Rule 9 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mayaka v Omaera Pharmaceuticals Limited (Cause 2176 of 2016) [2023] KEELRC 305 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/305/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.