Mberia v Mount Kenya University (Cause 1407 of 2016) [2023] KEELRC 2960 (KLR)
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
#Key legal issues
#Whether the consent order on liability recorded on 24th April, 2023 was properly made
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.
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.
Whether the court has power to set aside the consent order
Yes; the power is discretionary and exercised in aid of substantial justice, applying Patel v E.A Cargo Handling Services.
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.
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#- A consent judgment must be agreed upon by the parties freely and can only be varied or rescinded on the same grounds on which a contract may be set aside, such as fraud, misrepresentation or other vitiating element of a contract.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.The Respondent/Applicant's Notice of Motion dated 12th September, 2023 is allowed
- 2.The orders of the court made on 24th April, 2023 recording consent on liability are set aside
- 3.Costs shall be in the cause
- 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.