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ELRCDismissedApplication dated 23rd February 2024 (ELRC cause, number not stated)

Kenya Union of Commercial Food & Allied Workers & 13 others v Tatu City & another; Kenya Plantation and Agricultural Workers’ Union (Interested Party) (Employment and Labour Relations Cause E6452 of 2020) [2024] KEELRC 2388 (KLR)

Employment and Labour Relations Court
27 September 2024
1,450 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a union settlement over workers' terminal dues stands, and workers can now enforce payment directly.

What this practically means

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Executive summary

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The Applicants, grievants represented by Francis Mburu, sought by application dated 23rd February 2024, under Sections 1A, 3A and 22 of the Civil Procedure Act and Order 1 Rule 10 of the Civil Procedure Rules, to be enjoined as parties to the suit and to set aside a consent dated 9th October 2023 and adopted on 20th November 2023, contending that the consent, containing tabulations of their terminal dues, was signed between the Respondents' advocates and the Interested Party union behind their backs, with amounts they considered inordinately low. The Respondents opposed, arguing the Interested Party was the only recognized union following a ruling by Mbaru J on 6th October 2022, that negotiations were properly conducted through it as representative, and that the Applicants were estopped for failing to communicate dissent. The court, dispensing with the matter by written submissions, held that under Order 25 Rule 2 a consent must be signed by all parties, but that the Interested Party, being the recognized union, had full representative powers to negotiate and compromise the suit without reverting to the grievants on every item. Relying on Court of Appeal authority, the court held that a consent order can only be set aside on grounds that would vitiate a contract, such as fraud, non-disclosure or mistake, none of which was demonstrated. The application was dismissed with no order as to costs, with liberty granted to the grievants to demand payment under the consent and, in default, to commence execution proceedings.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Grievants should be enjoined as parties to the suit
  2. 2.Whether the consent dated 9th October 2023 and adopted on 20th November 2023 should be set aside
  3. 3.Whether the consent satisfied the requirement under Order 25 Rule 2 that a written consent be signed by all parties

Key legal issues

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01

Validity of the consent order in a representative suit

Holding

The consent remains binding; it was validly concluded by the recognized union in its representative capacity and no vitiating grounds were shown

Reasoning

The court applied Order 25 Rule 2 of the Civil Procedure Rules and its earlier ruling of 6th October 2022 (Mbaru J) which confirmed the Interested Party as the recognized union for collective bargaining. The Interested Party therefore had full powers to negotiate and compromise the suit on behalf of the grievants, and the principle of agency in trade unionism did not require consultation on every negotiation item. Applying Court of Appeal authority on consent orders, the court found no fraud, non-disclosure or mistake.

p. 4
02

Grounds for setting aside a consent order

Holding

A consent order can only be set aside on grounds that would vitiate a contract, such as fraud, non-disclosure of material facts or mistake

Reasoning

The court adopted the Court of Appeal's decision in Cheruiyot v Korir, which restated Flora N. Wasike v Destino Wamboko and Purcell v F C Trigell Ltd: a consent order is contractual in effect and may only be set aside on grounds justifying the setting aside of a contract, or where conditions remain unfulfilled. The grievants did not demonstrate any such ground.

p. 3

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all the parties
  • A recognized union with representative capacity need not revert to the grievants on each and every item of negotiations

Court orders

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  1. 1.The application dated 23rd February 2024 is dismissed
  2. 2.No order as to costs
  3. 3.If payments due under the consent have not been made, the grievants through the Interested Party or any other authorized agent may demand payment forthwith and in default commence execution proceedings
  4. 4.It is so ordered

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Sections 1A, 3A and 22 of the Civil Procedure Act and Order 1 Rule 10 of the Civil Procedure Rules 2010

Relief refused

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Joinder of the Grievants as parties to the suit

The application was found without merit; the Interested Party had full representative capacity following the ruling of 6th October 2022

p. 3

Setting aside the consent dated 9th October 2023 adopted on 20th November 2023

No sufficient grounds recognized by law (fraud, non-disclosure, mistake) were demonstrated

p. 4

Costs

No order as to costs - the application was dismissed with no order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application dated 23rd February, 2024 is however found without merit and is hereby dismissed with no order as to costs.
p. 4Final orders - dismissal
The Court however states that if the payments due under the consent have not been made then the grievants through the Interested Party or any other authorized agent, shall be at liberty to demand such payment forthwith and in default shall be free to commence execution proceedings.
p. 4Liberty to enforce the consent
A consent order can only be set aside on similar grounds that vitiates a contract.
p. 3Test for setting aside consent orders

Issues in the judgment

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minor

The judgment states the consent was 'dated 9th October,2023' in the application and holding, but the Replying Affidavit refers to 'the tabulations indicated in the parties consent dated 9th November,2023' - an internal inconsistency in the consent date

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Commercial Food & Allied Workers & 13 others v Tatu City & another; Kenya Plantation and Agricultural Workers’ Union (Interested Party) (Employment and Labour Relations Cause E6452 of 2020) [2024] KEELRC 2388 (KLR)", Case Analysis (2024). Application dated 23rd February 2024 (ELRC cause, number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2388/eng@2024-09-27

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