Were v Board of Directors, National Transport Safety Authority & another; Njao (Interested Party) (Petition 2 of 2023) [2023] KEELRC 347 (KLR)
The bottom line
#Once a consent is signed and filed in a Kenyan court, the judge will normally adopt it as an order even if you later change your mind.
What this practically means
#Executive summary
#Key legal issues
#Adoption of a filed but unadopted consent despite withdrawal of instructions
The court may adopt a validly signed and filed consent as a court order even where a party later withdraws instructions for its adoption, absent proof of invalidity
The court distinguished between signing a consent and consenting to its adoption, holding that once a valid written consent is signed and filed, the court's duty is to adopt it. Alleged misrepresentations during negotiations could not be introduced as extraneous matters outside the consent's clear terms, and no evidence established negative instructions issued before signing. Vitiating factors like fraud or mistake would require a formal application supported by affidavit.
Whether formal application needed to set aside the unadopted consent
Adoption proceedings were not a setting-aside or review exercise, so no formal application was needed; but striking out/expunging for fraud or mistake would require a formal application supported by affidavit
The court accepted the petitioner's submission that the consent had not been adopted and that these proceedings were not a setting-aside or review. However, it held that a party seeking to expunge a consent on grounds of fraud, mistake or misrepresentation must bring a formal application supported by affidavit establishing those material facts, which the petitioner had not done.
Effect of consent on the 2nd respondent
The 2nd respondent, not being party to the consent and having made no submissions, suffered no established prejudice defeating adoption
The court noted the 2nd respondent was not party to the consent and its counsel elected not to file submissions, deferring to the court's decision. Since no prejudice to the 2nd respondent was established on the record, this could not stand as a bar to adopting the consent as a valid court order.
Legal principles established
#- Once parties validly sign and file a consent in court, the court's duty is to adopt it as a court order; subsequent withdrawal of instructions to adoption does not defeat the court's authority to adopt a valid consent
- A party alleging vitiating factors such as fraud, mistake or misrepresentation must make a formal application supported by affidavit
Court orders
#- 1.The consent dated and filed on January 16, 2023 is adopted as an order of the court
- 2.Each party to bear own costs of the proceedings prompting this ruling
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over an employment-related petition; Article 159(2)(c) of the Constitution invoked on adoption of consents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Were v Board of Directors, National Transport Safety Authority & another; Njao (Interested Party) (Petition 2 of 2023) [2023] KEELRC 347 (KLR)", Case Analysis (2023). Petition dated December 30, 2022 (with Notice of Motion dated December 30, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/347/eng@2023-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.