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ELRCPartially AllowedELRC Petition No. E111 of 2028

Wambati Simiyu Merit v Music Copyright Society of Kenya Limited

Employment and Labour Relations Court
28 September 2026
2,648 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court adopted a 2022 settlement agreement as its order, but rejected the employee's inflated claim because he couldn't rely on the agreement and the original judgment at the same time.

What this practically means

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Executive summary

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The petitioner moved the ELRC by Notice of Motion dated 15th November 2024 seeking adoption of a settlement agreement dated 24th May 2022 as an order of the court. Judgment had been entered for the petitioner on 23rd September 2021 in the sum of Kshs.23,663,098.92 plus costs and interest. Under the agreement, the respondent undertook to pay Kshs.14,963,098 in four instalments, to refund salary deductions made towards the petitioner's obligations to his Sacco, Family Bank and EFC/CFC Bank, and to have party-and-party costs assessed by the court. The respondent paid Kshs.7,500,000 but fulfilled no other obligation, attributing default to restraining orders in ELRC Misc E103 of 2022 (later withdrawn), revocation of its royalty-collection licence by KECoBo in 2025, and freezing/garnishment of its accounts. The respondent opposed the claimed balance of Kshs.23,598,801, contending the agreement fully and finally settled the suit and that the applicant could not revert to the decretal sum while seeking adoption. The court held the agreement was intended to resolve the entire suit fully and finally; that the applicant's insistence on computing the balance from the original decretal sum was approbating and reprobating; that the applicant's delay favoured the respondent but the respondent still failed to perform; and that the claimed sums of Kshs.7,023,188 and Kshs.412,515 lacked a firm basis, the decree and warrant of attachment having been consensually set aside. The court adopted the settlement agreement as an order of the court and ordered each party to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the Settlement Agreement dated 24th May 2022 ought to be adopted as an order of the court
  2. 2.Whether the applicant's delay in prosecuting the application should weigh against him
  3. 3.Whether the applicant could claim the original decretal sum while simultaneously seeking adoption of the settlement agreement
  4. 4.How much the Respondent owes the applicant

Key legal issues

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01

Whether the settlement agreement should be adopted as an order of the court

Holding

The court adopted the agreement, holding it was intended to resolve the entire suit fully and finally, and both parties desired its adoption

Reasoning

The court found the agreement's clauses 1-5 showed intent to resolve the entire suit, including refund of salary deductions. Both parties executed it and neither disowned it. Despite the applicant's attempt to compute the balance from the original decretal sum, the court held the agreement extinguished further liability once fully implemented, and since both parties still desired its adoption, the wish was granted.

p. 10
02

Whether the applicant could claim the original decretal sum while seeking adoption of the agreement

Holding

No - that conduct amounts to approbating and reprobating, which the law does not countenance

Reasoning

The applicant sought adoption of the agreement while simultaneously computing the balance from the original decretal sum of Kshs.23,663,098.92. The court held this inconsistent conduct was impermissible, citing Sonko v Patel, Rajani v Rajani and Evans v Bartlam for the doctrine that one who accepts a benefit under a judgment or agreement cannot allege its invalidity.

p. 9
03

Whether the applicant's delay in prosecuting the application should defeat it

Holding

The delay, though an abuse of the Certificate of Urgency facility, favoured the Respondent by giving it time to fulfil its obligations, which it failed to do beyond paying Kshs.7,500,000

Reasoning

The court acknowledged the applicant took exceedingly long to prosecute an application filed under Certificate of Urgency. However, the delay accorded the Respondent time to perform, and the Respondent paid only Kshs.7,500,000 and fulfilled no other obligation. The adverse orders cited (licence revocation, account freezing, garnishment) post-dated the date the agreement ought to have been honoured.

p. 7
04

Quantum of the outstanding balance

Holding

The claimed figures of Kshs.7,023,188 (deductions) and Kshs.412,515 (costs) were unsubstantiated; the unremitted dues of Kshs.3,003,942 were neither proved nor awarded

Reasoning

The court found the applicant's figure of Kshs.7,023,188 lacked a firm basis, noting the petitioner had quantified deducted and unremitted dues at Kshs.3,003,942 in the re-amended petition and it was unclear how the amount more than doubled. The costs of Kshs.412,515 fell away because the decree and warrant of attachment were consensually set aside and never reinstated.

p. 9

Legal principles established

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  • A consent or settlement agreement becomes an order of the court once formally adopted by the court
  • A party cannot approbate and reprobate - accept a benefit under an agreement while alleging its invalidity or varying its terms

Court orders

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  1. 1.The Settlement Agreement dated 24th May 2022 duly executed by the parties and filed belatedly is adopted as an order of the court
  2. 2.Parties shall bear their own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 159(2)(d) and Article 48 of the Constitution; Civil Procedure Act sections 1A, 1B and 3A; Order 51 rule 1 of the Civil Procedure Rules

Relief refused

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Adoption of the settlement on the basis of the claimed sum of Kshs.23,598,801 (including Kshs.7,023,188 deductions and Kshs.412,515 costs)

The agreement fully and finally settled the suit; the applicant could not approbate and reprobate; the claimed sums lacked proof and the decree and warrant of attachment had been consensually set aside

p. 9

Costs

Parties shall bear their own 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.

Consequently, the Settlement Agreement date 24th May 2022 duly executed by the parties and filed belatedly, be and is hereby adopted as an order of the court.
p. 11Final orders - adoption of settlement agreement
Parties shall bear their own costs.
p. 11Costs order
A careful perusal of paragraph 1, 2, 3, 4 and 5 of the Settlement Agreement leave no doubt in the court's mind that it was intended to resolve the entire suit fully and finally contrary to the applicant's submissions.
p. 10Full and final settlement
He is simply approbating and reprobating at the same time something the law does not countenance.
p. 9Approbation and reprobation
The sum of Kshs.7,023,188 claimed by the applicant lacks a firm basis for a court to award or sanction.
p. 9Quantum of unremitted deductions

Issues in the judgment

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minor

Case number inconsistency: E111 of 2028 in caption vs PET 111 OF 2018 in footer

minor

Settlement sum discrepancy: 14,963,098 vs 14,963,038

minor

Typographical errors in citations, e.g. '(20150 KECA 977 (KLR)' and '(1937) e ALLER 649'

minor

Decretal sum stated as 23,663,098.92 in analysis but applicant's claimed balance of 23,598,801 does not reconcile with payments deponed

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, "Wambati Simiyu Merit v Music Copyright Society of Kenya Limited", Case Analysis (2026). ELRC Petition No. E111 of 2028. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2651/eng@2026-09-28

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