[2017] KEELRC 831 (KLR)
The court found that the consent agreement between the parties was clear and unambiguous, expressly stating that the payment of Kshs.200,000 was in full and final settlement of all claims, including legal representation and court costs. There was no evidence of fraud, misrepresentation, or lack of parity of arms in...
Source-derived case information.
- Citation
- [2017] KEELRC 831 (KLR)
- Parties
- Claimant: Daniel Otieno Nyamuti; Respondent: Trans Oceanic Projects and Developments Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1680 of 2016
- Procedural Posture
- Employment Cause / Ruling on Costs After Settlement by Consent
- Outcome
- Suit marked as settled by consent; each party to bear their own costs.
- Legal Topics
- Costs Award, Settlement by Consent, Advocate Participation, Finality of Settlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Daniel Otieno Nyamuti
Claimant
Trans Oceanic Projects and Developments Kenya Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Costs After Settlement by Consent
Legal Issues
- 1 Whether the claimant is entitled to costs after settlement by consent without advocate involvement.
- 2 Whether the consent agreement precludes an award of costs to the claimant.
Ratio Decidendi
The court found that the consent agreement between the parties was clear and unambiguous, expressly stating that the payment of Kshs.200,000 was in full and final settlement of all claims, including legal representation and court costs. There was no evidence of fraud, misrepresentation, or lack of parity of arms in the negotiation of the consent. The court held that the claimant, having acknowledged and accepted the terms of the agreement, could not seek to revisit the issue of costs after the settlement had been consummated. The consent was adopted as an order of the court, and each party was ordered to bear their own costs.
Court Disposition
Suit marked as settled by consent; each party to bear their own costs.
Orders
- The consent entered into by the parties is adopted as an order of the court.
- The suit is marked as settled.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1680 OF 2016
DANIEL OTIENO NYAMUTI..................................................CLAIMANT
VERSUS
TRANS OCEANIC PROJECTS AND
DEVELOPMENTS KENYA LIMITED.............................RESPONDENT
M/S Muhanda for claimant/applicant
Mrs Muchene for respondent
RULING ON COSTS
1. Parties entered a consent in terms of which the respondent paid the claimant Kshs.200,000 as settlement of the claim. The claimant’s advocate was not involved in the negotiation of the settlement and only came to know of the consent when it was presented to court for adoption by the respondent’s advocate.
2. The issue in dispute is whether costs must be paid to the claimant or not.
3. The claimant submits that in terms of section 12 (4) of the Civil Procedure Act, “In proceedings under this Act, the court may, subject to the rules, make such orders as to costs as the court considers just.”
4. That in terms of section 27 (1) of the Civil Procedure Act, the“costs of and incidental to all suits shall be in the discretion of the court or Judge ………..”
5. The consent between the claimant and the respondent was filed on 16th February 2012 in a bundle of additional list of documents and the document was not specifically adopted as an order of the court.
6. Although the document is captioned “without prejudice”, this privilege enjoyed by advocates is not extended to lay men by law and is in any event not claimed by either party in this suit. The agreement was consummated by actual payment of the agreed amount which fact is not in dispute.
7. By the time the agreement was entered into on 11th January 2017, this suit had been filed and is specifically referred to in the agreement as follows;
“your acceptance of this cheque will forthwith relinquish Trans Oceanic Projects & Development (Kenya) Limited from any further responsibility or liability for these and any future claims from you including all claims in Civil Suit No. 1680 of 2016 at the Employment and Labour Relations Court at Nairobi and that we will not be responsible for any of your costs as it pertains to your legal representation and court costs resulting thereof.”
8. The claimant acknowledged that he had read and understood the contents of the agreement and confirmed receipt of Kshs.200,000 as his final dues and as settlement of all claims he had against the respondent in civil suit No. 1680 of 2016.
9. There has been no allegation that the claimant was induced by misrepresentation or fraud nor has it been alleged that there was no parity of arms in the negotiations that resulted in the consent. HCCC at Nairobi, Civil Appeal No. 35 of 2013, Blue Bells Foods Limited Vs. Daystar University & another [2016] eKLR is on point.
10. For these reasons the claimants cannot be heard to shift the goal posts after the horse has bolted. The consent entered into by the parties pursuant to which Kshs.200,000 was paid to the claimant is adopted as an order of the court.
11. The suit is marked as settled and each party to bear their own costs of the suit.
Dated and delivered at Nairobi this 4th day of August, 2017
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE