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ELRCDismissedPetition dated 03.07.2023 (Consent orders of 29.10.2024; Notice of Motion dated 21.02.2025)

Waweru v County Government Of Kiambu; Kiambu County Public Service Board (Interested Party) (Petition E136 of 2023) [2025] KEELRC 1645 (KLR)

Employment and Labour Relations Court
5 June 2025
1,090 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kiambu County's attempt to cancel a payment deal it had already agreed to in court failed because it knew the facts all along.

What this practically means

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Executive summary

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The Kiambu County Government, through the County Attorney, filed a Notice of Motion dated 21.02.2025 under sections 1A and 3A of the Civil Procedure Act and Order 45 rules 1 and 2 of the Civil Procedure Rules, seeking to set aside consent orders recorded on 29.10.2024, under which the respondent was to pay the petitioner all accruing payments for the period of suspension or disciplinary process leading to his dismissal, with a decree to issue and amounts to be computed by the parties. The applicant alleged that counsel had discovered undisclosed material facts: that under the County's Human Resource Policies and Procedures Manual (2019), section K.6(1), salary is stopped for officers absent over 24 hours without leave, and that the petitioner's salary had been stopped on 19.12.2022 although the petitioner claimed it was stopped in November 2022, amounting to misrepresentation and non-disclosure that prejudiced the respondents. The petitioner opposed, asserting no fraud, mistake, inducement or material non-disclosure was established, and that the court was functus officio, the consent decree being final and having conferred a benefit. Relying on Brooke Bond Liebig v Mally as quoted in Katima v Clerk, Nairobi City County Assembly, the court applied the settled principles for setting aside consent orders. It held that the material question was whether, with due diligence, the applicant could have discovered the alleged new fact before entering the consent; since the salary stoppage was a decision made by or for the applicant, which it knew or ought to have known, the ground failed. The petitioner's punishment under the laid-down procedure could not nullify his entitlement under the consent, which was entered with full knowledge of the dismissal. The application was dismissed with costs on 5 June 2025 (Byram Ongaya, Principal Judge).

Questions the Court framed

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

  1. 1.Whether the applicant established grounds (fraud, mistake, non-disclosure of material facts) warranting setting aside of the consent orders of 29.10.2024
  2. 2.Whether the alleged concealment of the date the petitioner's salary was stopped (19.12.2022 as opposed to November 2022) was a material non-disclosure
  3. 3.Whether the court is functus officio having recorded the consent decree

Key legal issues

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01

Grounds for setting aside a consent order

Holding

The applicant failed to establish any of the recognized grounds (fraud, non-disclosure of material facts, mistake, or any reason sufficient to set aside an agreement)

Reasoning

The court adopted the Brooke Bond Liebig principles. The alleged undisclosed fact - that the petitioner's salary was stopped on 19.12.2022 - was a decision made by or for the applicant itself, which the applicant knew or ought to have known when the consent was entered. Without an explanation of due diligence showing the fact could not have been discovered earlier, the non-disclosure ground fails. The dismissal of the petitioner was known to both parties when the consent was recorded.

p. 3
02

Effect of the county HR manual on the consent decree

Holding

The petitioner's punishment under the laid-down procedure cannot be used by the applicant to nullify the payments the petitioner became entitled to under the consent orders

Reasoning

The applicant argued the consent could not be enforced pursuant to the Human Resource Policies and Procedures Manual. The court held that although the petitioner was punished per the laid-down procedure, this cannot be relied upon to nullify his entitlement under the consent decree, which was entered with full knowledge that he had been dismissed.

p. 3
03

Functus officio

Holding

The applicant's functus officio objection by the petitioner stands effectively vindicated as no ground for review was established and the consent decree is final

Reasoning

The petitioner argued the court, having recorded the consent of 29.10.2024, was functus officio and the orders could only be appealed, not reviewed. The court did not make a standalone functus officio finding but dismissed the review application, leaving the consent decree standing and enforceable.

p. 2

Legal principles established

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  • A consent order can only be set aside on established grounds such as fraud, collusion, non-disclosure of sufficient material facts, mistake, or a reason that would enable the court to set aside an agreement
  • A party seeking to set aside a consent order for non-disclosure must show that with due diligence the alleged new fact could not have been discovered before entering the consent; a fact originating from the applicant's own decision or knowledge cannot ground review

Court orders

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  1. 1.The Notice of Motion dated 21.02.2025 is dismissed with costs
  2. 2.The consent orders of 29.10.2024 remain in effect and the petitioner is entitled to payment per the terms of the consent orders/decree

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original employment and labour relations jurisdiction; application under sections 1A and 3A of the Civil Procedure Act and Order 45 rules 1 and 2 of the Civil Procedure Rules (review of consent orders)

Relief refused

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Setting aside of the orders issued on 29.10.2024

The applicant failed to establish any known ground for setting aside a consent order; the alleged non-disclosed fact was a decision made by or for the applicant and within its knowledge at all material times

p. 3

Order that the petition dated 03.07.2023 be heard and determined on merit

No triable issue was established; the consent was entered with full knowledge that the petitioner had been dismissed

p. 3

Costs

The application is dismissed with costs (costs to the petitioner/respondent).

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.

A consent order cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the Court or if the consent was given without suficient material facts or in general for a reason which would enable the court to set aside an agreement.
p. 3Principles for setting aside a consent order
what is material is whether on the applicant's part, with due diligence, the alleged new fact could not be made accessed and invoked prior to entering the consent.
p. 3Due diligence requirement for non-disclosure ground
the alleged new material fact is found to have been a decision by or for the applicant and in the applicant's knowledge at all material times. As a ground for review or setting aside the consent judgment, the same will fail.
p. 3Applicant's own knowledge defeats review
In conclusion the application is hereby dismissed with costs.
p. 3Final orders - dismissal

Issues in the judgment

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minor

The consent order as recorded states a suspension/disciplinary period of '11.11.2024 to 01.08.2024' with the later date first, an apparent internal date inconsistency

minor

The applicant's grounds inconsistently refer to the Human Resource Policies and Procedures Manual as both 2019 and 2016 versions

minor

Judgment ends with the sentence 'It is that the petitioner is entitled to pay per the terms of the consent orders', which appears to be a typographical error

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, "Waweru v County Government Of Kiambu; Kiambu County Public Service Board (Interested Party) (Petition E136 of 2023) [2025] KEELRC 1645 (KLR)", Case Analysis (2025). Petition dated 03.07.2023 (Consent orders of 29.10.2024; Notice of Motion dated 21.02.2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1645/eng@2025-06-05

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