Kenya County Government Workers Union (Bungoma Branch) v Branch Secretary, Kenya County Government Workers Union (Bungoma Branch); Kenya County Government Workers Union (Intended Interested Party) (Miscellaneous Application E008 of 2023) [2023] KEELRC 2247 (KLR)
The bottom line
#The Employment and Labour Relations Court refused to let the national union overturn a settlement its Bungoma branch had made, because the union proved no fraud.
What this practically means
#Executive summary
#Key legal issues
#Whether the Intended Interested Party satisfied the test for joinder as an interested party
The test for joinder was not met; the Intended Interested Party did not demonstrate a clear identifiable stake, the prejudice of non-joinder, or the specific case it intended to make
Relying on the Muruatetu elements as restated in John Harun Mwau v Simone Haysom and Mativo J's test in Kenya Medical Laboratory Technicians Board, the court required an identifiable legal interest, demonstrable prejudice and intended non-replicative submissions. The Intended Interested Party merely asserted that only the General Secretary could file suits and consents, offered no evidentiary documents, and referenced matters not before the court.
Whether the consent order filed on 30th May 2023 should be set aside
The application to set aside the consent failed; no vitiating factor such as fraud, collusion, mistake, misrepresentation, coercion or undue influence was proved
A consent order has contractual effect and may only be set aside on grounds justifying setting aside a contract (Flora N. Wasike v Destimo Wamboko; Hirani v Kassam). The Intended Interested Party produced no documents or proceedings proving that the Branch officials were removed from office or that the consent was procured through collusion. The Branch Union had capacity, its officials were registered, and Albert Simiyu was validly co-opted under Article 6(c) of the Union Constitution.
Whether the Branch Union had locus standi to file the suit and enter the consent
The Branch Union had locus; registration of the branch and its officials confers capacity to sue and enter consents
Section 21 of the Labour Relations Act makes a registered trade union a body corporate; Section 25(5) provides that no person shall act as an official of an unregistered branch. Following Republic v Registrar of Trade Unions ex parte UASU Egerton University Chapter, the court held that registration gives a branch capacity and locus. Article 22 and 258 of the Constitution further enlarge access to justice. The officials including Albert Simiyu, co-opted per Article 6(c), were on the register.
Whether the court was functus officio after adopting the consent
The court retained power to review a consent order upon proof of fraud, misrepresentation or coercion; the functus officio doctrine bars only merit-based re-engagement after final judgment
Relying on Telkom Kenya Limited v John Ochanda, the court distinguished a merit-based decisional re-engagement, which is barred, from a review of a consent order where vitiating factors exist. Since the parties entered a consent rather than a contested merits decision, and no vitiating factor was proved, the doctrine did not prevent the court from considering the application, which nonetheless failed on its merits.
Whether the miscellaneous application was an improper pleading
The issue could not be raised at submissions stage as it was not pleaded in the application; submissions are not pleadings
The Intended Interested Party argued in submissions that a miscellaneous application was inappropriate and a proper suit should have been filed. The court held that this issue was not raised in the application itself, and submissions are not pleadings, so the point could not be introduced at submissions stage. In any event, the parties had already settled and adopted the consent by 31st May 2023.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, such as fraud, collusion, mistake, misrepresentation, coercion or undue influence
- A court becomes functus officio only after a merit-based final decision; it retains power to revisit a consent order where fraud, misrepresentation or coercion is proved
- A registered branch union has locus standi to sue where it is duly registered and its officials registered with the Registrar of Trade Unions
Court orders
#- 1.The Notice of Motion dated 8th June 2023 by the Intended Interested Party is dismissed
- 2.No costs awarded as the parties are members of the same union
- 3.Right of appeal in 30 days
- Jurisdiction invoked
- Discretionary jurisdiction of the Employment and Labour Relations Court to join an interested party; Article 159(2) of the Constitution and Sections 1A & 1B of the Civil Procedure Act invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya County Government Workers Union (Bungoma Branch) v Branch Secretary, Kenya County Government Workers Union (Bungoma Branch); Kenya County Government Workers Union (Intended Interested Party) (Miscellaneous Application E008 of 2023) [2023] KEELRC 2247 (KLR)", Case Analysis (2023). Notice of Motion dated 8th June 2023 (ELRC Miscellaneous Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2247/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.