[2018] KEELRC 2434 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CASE NO. 2257 OF 2012

(Before Hon. Justice Mathews N. Nduma)

CHRISTINE ATIENO OPIYO..................................................PLAINTIFF

VERSUS

MICHELLE ANYANGO............................................1ST RESPONDENT

NICHOLAS NYASORO..........................................2ND RESPONDENT

RULING

1. On 8th September, 2016, Application dated 15th January, 2016 was granted upon Mr. Arum Otieno for Plaintiff and Mr. Maina for the Respondent submitting before the bar that they were both not opposed to the grant of the application.

2. The application sought to have the deceased plaintiff in the suit M/s. Christine Atieno Opiyo substituted by her beneficiaries’ daughters, Winnie Achieng Opiyo and Nelly Awuor Opiyo.

3. A limited grant of succession to the two daughters was granted by the High court in succession cause no. 1954 of 2015 on 27th July, 2015 and was presented to court by counsel for the Plaintiff /Respondent.

4. The applicant seeks to set aside the consent order on grounds that, counsel for the Respondent mistakenly gave wrong instructions to the court clerk, and that the respondent wished at all material times to oppose the application for substitution of the plaintiff.

5. The applicant relied on Bhupinder Singh Dogra v Coast Development Authority Mombasa HCCC No.158 of 2003, where it was held –

The Courts have had occasion to consider when a consent order can be set aside. I can do no better than refer to the case of FLORA N. WASIKE Vs DESTIMO WAMBOKO (1982-88) I KAR. The Court of Appeal in considering whether a consent order can be set aside had this to say:-

“It is settled law that a consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract, for example fraud, mistake or misrepresentation.”

6. The 1st Respondent has sworn an affidavit stating that at no time, did the 1st and 2nd Respondent give instructions to the Advocate for the Respondents not to oppose the application for the substitution of the Plaintiff. They oppose that application on the basis that the suit has taken too long to be disposed of and the suit for the deceased should not be revived.

7. The plaintiff/Respondent opposes the application on the grounds that both parties were represented by Advocates. That on 8th September, 2016 the application for substitution was granted by consent of Mr. Arum for the Plaintiff and Mr. Maina for Respondent.

8. There is no affidavit by Mr. Maina Advocate for the Respondent/Applicant alleging mistake, fraud or misrepresentation to him when he consented to the application.

9. As a matter of fact, the consent was founded on the Letters of Administration (Limited Grant) issued on 18th August, 2015, in succession cause no.1956 of 2015 which was before court and without which the court would not have granted the application for substitution of the deceased plaintiff.

10. Clearly, the applicant has no factual or legal basis to oppose the grant of the application for substitution in terms of the consent entered on 8th September, 2016. The application is dilatory in nature, and only meant to frustrate the cause by the beneficiaries of the deceased plaintiff.

11. The application to set aside the consent order is dismissed with costs. The suit to be heard on merits on priority basis, it being a 2012 matter.

12. The matter be placed before the Principal Judge Employment & Labour Relations Court for allocation of a hearing date.

Dated and Signed in Kisumu this 1st day of February, 2018

Mathews N. Nduma

Judge

Delivered and signed in Nairobi this 16th day of February, 2018

Maureen Onyango

Judge

Appearances

Otieno Ragot for Applicant

Otieno Arum for Respondent

Anne Njung’e – Court Clerk