[2016] KEELRC 435 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI

CIVIL APPEAL NO. 12 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

IBRAHIM TANGA NANDELI..................................... CLAIMANT

-Versus-

1. N. K. BHATIA

2. MUMIAS SUGAR COMPANY LIMITED...........RESPONDENTS

R U L I N G

The Appeal herein arises from a decision of the trial Magistrate in Mumias SRMCC No.156 of 2005. In the suit the appellant sought damages against the Respondent for injuries sustained due to a road traffic accident while in the course of employment.

In its judgement delivered on 6th September 2011, there is a finding that the Claimant (appellant herein) worked for the 2nd Defendant (2nd Respondent herein) but the court found that there was no proof that the driver of the motor vehicle that caused the accident was an employee of the 2nd Respondent. The court found the 2nd Respondent not liable. The 1st Respondent was found liable and judgement entered against it in favour of the Appellant in the sum of Kshs.800,000 general damages, Shs.44,100 special damages and costs. The case against the 2nd Respondent was dismissed.

Aggrieved by the decision dismissing the case against the 2nd Respondent, the Appellant filed an appeal at the High Court in Kakamega being Kakamega Civil Appeal No.142 of 2011.

On 28th May, 2015 when parties appeared before Mrima J, they recorded a consent in the following terms;

''By consent this matter is transferred to the Industrial Court for hearing and determination.''

The consent was adopted by the court in the following terms:-

''Consent adopted as an order of this court. Matter to be fixed for a mention before the Employment and Labour Relations Court at Kisumu on 18/6/2015

Signed Mrima - Judge

25/5/2015''

The coram for that day shows that Mr. Oyagi was present for Appellant and Ms. Wilunda for Respondents. The file was later delivered to this court by forwarding letter dated 16th July, 2015 and received on 22nd July, 2015.

By a motion dated 27th February 2016, the 2nd Respondent seeks the following orders:-

1. That this Honourable Court be pleased to declare that the proceedings in Mumias SRMCC No.156 of 2005do not fall within the jurisdiction of this Honourable Court and that this Honourable Court cannot determine an appeal therefrom.

2. That this Honourable Court orders that the appeal be transferred back to the High Court at Kakamega for hearing and determination.

3. That the costs of this application be provided for.

The application is supported by the grounds on the face thereof and the affidavit of ELLY KEFA OWINYI, Counsel for the 2nd Respondent.

In the affidavit Mr. Owinyi depones that the appeal seeks that liability be apportioned to the 2nd Respondent/Applicant for breach of duty of care, that the suit seeks damages for injuries sustained as a result of a road traffic accident and that there is no employment dispute between the 2nd Respondent/Applicant and the Appellant. He prays that the court finds that the appeal falls within the jurisdiction of the High Court in Kakamega and that this court has no jurisdiction to determine the appeal.

The Appellant opposed the application and filed a replying affidavit sworn on 31st March, 2016 in which he states that his suit was filed on 19th November, 2001 in Butere CC NO. 201 of 2001. It was transferred to Mumias and given a new number Mumias SRM CC NO.156 of 2015. He was aggrieved by the verdict of the court in Mumias and filed an appeal in Kakamega which upon directions was transferred to this court. He further states that at the time of injury he was an employee of the 2nd Respondent/Applicant and the injury occurred in the course of employment hence this court has jurisdiction to hear the appeal.

He further depones that this matter has been in court for 15 years and the application herein by the 2nd Respondent is intended to delay the matter further.

The application was argued by way if written submissions.

The 2nd Respondent/Applicant reiterates in its written submissions that the suit against the 1st Respondent is based on the tort of negligence and the appellant sued the 1st Respondent as owner of the motor vehicle on which the appellant was on board at the time of the accident. That the suit against the 2nd Respondent is based on both the tort of negligence and breach of duty of care in its capacity as the appellant's employer. The appellant sought general and special damages. That the Magistrate dismissed the suit against the 2nd Respondent.

It is submitted that section 12(1) of the Employment and Labour Relations Act grants this court original and appellate jurisdiction in Employment and Labour Disputes and that there ought to be an employment relationship between the parties, that no employment relationship exists between the appellant and the 2nd Respondent and therefore the dispute falls outside the ambits of this court. That the appeal is on apportionment of liability between both defendants.

The 2nd Respondent prays that the appeal be transferred back to Kakamega High Court for determination.

The 2nd Respondent relies on the Court of Appeal decision in Samuel Kamau Macharia v Kenya Commercial Bank and Others [2012] eKLR in which the court stated that ''A court's jurisdiction flows from either the constitution or legislation or both.'' The 2nd Respondent submitted that neither section 162(2) of the Constitution or section 12 and 29 of the Employment and Labour Relations Court Act confer to this court jurisdiction on claims based on the tort of negligence and breach of duty of care arising out of a road traffic accident.

For the Appellant it was submitted that section 4(2) and 18 of the Employment and Labour Relations Court Act confer jurisdiction on this court to hear appeals from Magistrates courts. The Appellant relied on the decision in Kiamoka Tea Factory Company Limited v Joshua Nyakoni Kisii HCC Appeal No.169 of 2009. It was submitted for the appellant that his injuries were sustained in the course of employment and this court has jurisdiction.

Determination

The subject matter of the suit for which the present appeal has been filed is contained in paragraphs 3, 4, 6 and 7 of the plaint in which it is pleaded that -

4. At all material times the Plaintiff was employed by the 2nd Defendant.

5. At all material times the 1st Defendant was an employee, driver, agent and/or servant of the 2nd Defendant as the fertilizer distributor.

6. On or about the 26th June 2001 at around 12. 20pm while the Plaintiff was in the course of his employment aboard motor vehicle registration number KAG 173 U at Kholera along Matungu-Kholera road when the 1st Defendant, driver, servant, authorised agent and/or employee so negligently, carelessly and/or recklessly drove, managed and/or controlled motor vehicle registration number KAG 173 U that it lost control and veered off the road and overturned thus causing serious bodily injuries to the Plaintiff.

7a. The Plaintiff states that the accident occurred due to negligence of the 1st defendant, his agent or servant in the ordinary course of duty and in performing the contract of hire for the joint benefit and with authority of the 1st and 2nd defendant. Consequently the 1st and 2nd defendant are vicariously liable for the negligence complained of at paragraph 8.

7b. In the alternative and without prejudice to the foregoing the plaintiff avers that he was at all material times an employee of the 2nd defendant and that it is the duty of the 2nd Defendant to take all reasonable precautions for the safety of the Plaintiff while in the said employment and not to expose the Plaintiff to any risk, damage or injury and to provide a safe place of work, safe means of travel to and from the place of work and a proper working system. The plaintiff avers that the said accident was wholly caused as a result of the defendants' negligence and/or breach of duty.

As I have already pointed out herein above, this case was transferred to this court by a consent order of the parties recorded before Mrima J. at the High Court in Kakamega. This therefore means that the orders sought in the application are substantively seeking the review and/or setting aside of the orders made by consent before another court of equal status. Both review and setting aside can only be done by the court in which the orders were made. Such orders have not been extracted. Secondly, the application is made in the wrong court.

The principles relating to review and/or setting aside of consent orders are well documented in judicial jurisprudence. In the case of Wasike v Wamboko the High Court at Kakamega (Gicheru J, as he then was) held -

"1. A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, or if certain conditions remain to be fulfilled which are not carried out.

2. The Civil Procedure Act (Cap 21) Section 67 (2) is not an absolute bar to challenging a decree passed with the consent of the parties where a party seeks to prove that the decree is invalid ab initio and should be rescinded or that there exist circumstances to warrant varying the decree.

3. In this case, there were no grounds which would justify the setting aside of the consent judgment.

Appeal dismissed.”

The position is clearly set out in Setton on Judgments and Orders (7th Edn), Vol.1 pg 124 as follows-

“Prima Facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...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 sufficient material facts, or in general for a reason which would enable the court to set aside an agreement.”

This passage was followed by the Court of Appeal in Brooke Bond Liebig Ltd V Mallya [1975] EA 266 at 269in which Law Ag P said:

“A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.”

In Kenya Commercial Bank Ltd V. Benjoh Amalgamated Ltd, Githinji J, ( as he then was) considered the circumstances under which a consent judgment can be set aside and referred to and relied on the decision in Hirani V. Kassam [1952] 19 EACA 131in which the above passage from Seton on Judgments and Orders was approved.

“It is now well settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out: see the decision of this court in J. M. Mwakio v Kenya Commercial Bank Limited Civ Apps 28 of 1982 and 69 of 1983. In Purcell v F.C. Trigell Ltd [1970] 3 All ER 671, Winn LJ said at 676:-

“It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with the knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.”

In Kenya Commercial Bank Ltd V Specialised Engineering Co. Ltd [1982] KLR 485, Harris J correctly held inter alia, that –

1. A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.

1. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.

A consent order acquires the nature of an agreement and can only be set aside or reviewed in circumstances where agreements may be reviewed or set aside. No allegation has been made by the applicant/2nd Respondent that circumstances exist in this case justifying the setting aside or review of the consent order.

The foregoing are sufficient grounds to justify the dismissal of the application herein. In addition, section 52(2) of the Work Injury Benefits Act provides that appeals arising from work injury cases lie with the this Court. Section 10 of the Act provides that an employee injured in the course of employment is entitled to benefits under the Act.

At the time of the Appellant's accident in 2001 the relevant legislation was the Workmen's Compensation Act (repealed) which covered injuries sustained by employees in the course of employment and further provided that and employee may claim under both the Act and common law. The injuries which are the subject of this dispute having arisen in the course of employment, it is within the jurisdiction of this court under its appellate jurisdiction donated by section 18 of the Employment and Labour Relations Act. The case cited by the 2nd Respondent that is, Samuel Kamau Macharia v Kenya Commercial Bank therefore does not support 2nd Respondent’s contention but rather, that of the Appellant.

It is my finding that this court has jurisdiction to hear the appeal. It is my further finding that this court does not have jurisdiction to grant the orders sought as the orders were granted by consent of the parties and the application has been filed in the wrong court and without extracting the orders. The same should have been filed in the court which granted the orders by way of an application for review or setting aside of the consent order as this court does not have jurisdiction to grant the orders sought in the present application.

For these reasons I find the application without merit and I dismiss the application with costs to the appellant.

Dated and signed and delivered this 15th day of September, 2016

MAUREEN ONYANGO

JUDGE