Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedCause No 1407 of 2016· [2023] KEELRC 2960 (KLR)

Mberia v Mount Kenya University (Cause 1407 of 2016) [2023] KEELRC 2960 (KLR)

Employment and Labour Relations Court
20 November 2023
2,232 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court set aside a consent order on liability because no written agreement existed, confirming employers can challenge improperly recorded settlements.

What this practically means

#

Executive summary

#
This is a ruling of the Employment and Labour Relations Court at Nairobi (Gakeri J) delivered virtually on 20th November 2023 on the Respondent's Notice of Motion dated 12th September 2023, which sought review of consent orders issued on 24th April 2023 recording a finding of liability in favour of the Claimant, with parties to file submissions on quantum. The Respondent contended that negotiations had not yielded any agreement on liability, that the consent was oral, unwritten and recorded in its counsel's absence, and that it was obtained by misrepresentation. The Claimant maintained that agreement had been reached on liability, leaving only quantum outstanding. Tracing the suit's history since its institution on 18th July 2016, marked by serial non-attendance, adjournments and stalled settlement negotiations, the court reviewed the email correspondence showing offers and counter-offers of 3, 8 and 5 months' salary with no written acceptance of the final offer. The court held that there was no documentary evidence of agreement on liability, that the Claimant's counsel's statement on 24th April 2023 amounted to a misrepresentation of the state of negotiations, and that a consent order binds only where freely agreed and may be rescinded on grounds such as fraud or misrepresentation. Applying PMM v JNW and Patel v E.A Cargo Handling Services on substantial justice and the court's wide discretion, the court allowed the application, set aside the orders of 24th April 2023, and ordered costs to be in the cause.

Key legal issues

#
01

Whether the consent order on liability recorded on 24th April, 2023 was properly made

Holding

The consent order was improperly recorded as there was no documentary evidence that the parties had agreed on liability; the Claimant's counsel's statement amounted to misrepresentation and the order was set aside.

Reasoning

Email correspondence showed offers and counter-offers (3 months, 8 months, 5 months' salary) with no written acceptance by the Claimant of the 5-month counter-offer. The Claimant's own submissions conceded quantum was still contentious. The court, guided by authorities that consent orders bind only where freely agreed and that setting them aside serves substantial justice, found the consent was recorded on a misrepresentation of the status of negotiations and condemned the Respondent unheard.

p. 4
02

Whether the court has power to set aside the consent order

Holding

Yes; the power is discretionary and exercised in aid of substantial justice, applying Patel v E.A Cargo Handling Services.

Reasoning

The court adopted the principle in Patel v E.A Cargo Handling Services that there is no limit or restriction on the judge's discretion except that any variation must be on just terms, and relied on PMM v JNW on the duty to afford both parties a proper opportunity to advance their cases, a fundamental principle of natural justice. The Respondent had been absent when the consent was recorded and would otherwise be condemned unheard.

p. 5

Legal principles established

#
  • A consent judgment must be agreed upon by the parties freely and can only be varied or rescinded on the same grounds on which a contract may be set aside, such as fraud, misrepresentation or other vitiating element of a contract.
  • The power of the court to set aside consent judgments, orders or proceedings is discretionary and the over-arching principle is to do substantial justice to the parties.

Court orders

#
  1. 1.The Respondent/Applicant's Notice of Motion dated 12th September, 2023 is allowed
  2. 2.The orders of the court made on 24th April, 2023 recording consent on liability are set aside
  3. 3.Costs shall be in the cause

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • Gurpreet Singh v Chatur Bhuj Goel
    [1988] AIR 400
  • Wema Foundation Trust Co. Ltd v County Government of Nairobi City & another
    [2022] eKLR
  • Munyiri v Ndunguya
    [1985] eKLR
  • Sarova Hotels Ltd India v Placid Properties Ltd Gross & Co. Advocates
    Misc App. 157 of 2017 (2022 KEHC 85 (KLR)
  • PMM V JNW
    [2020] eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Patel v E.A Cargo Handling Services
    [1974] EA 75
  • Patrick Omondi Opiyo t/a Dallas Pub V Shaban Keah & another
    (2018) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction; application for review/setting aside of consent orders recorded in the pending suit

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mberia v Mount Kenya University (Cause 1407 of 2016) [2023] KEELRC 2960 (KLR)", Case Analysis (2023). Cause No 1407 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2960/eng@2023-11-20

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