[2015] KEELRC 541 (KLR)
The court found that the consent order recorded between the claimants and the 1st respondent, which reinstated the claim against the 2nd respondent, was made without the 2nd respondent's participation. This violated the principles of natural justice and fair hearing, as the 2nd respondent was not given an...
Source-derived case information.
- Citation
- [2015] KEELRC 541 (KLR)
- Parties
- Applicant: Joseph Ashioya & 165 Others; Respondent: Kenya United Steel Co. Ltd; Respondent: Price Water House Coopers
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 10 of 2012
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Consent Order
- Outcome
- application allowed; consent order set aside; matter to be heard afresh with all parties.
- Judges
- J Rika
- Legal Topics
- Consent Orders, Joinder of Parties, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ashioya & 165 Others
Applicant
Kenya United Steel Co. Ltd
Respondent
Price Water House Coopers
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order recorded between the claimants and the 1st respondent could validly reinstate the claim against the 2nd respondent without its participation.
- 2 Whether the 2nd respondent is entitled to have the consent order set aside and be granted leave to respond to the claimants' application.
Ratio Decidendi
The court found that the consent order recorded between the claimants and the 1st respondent, which reinstated the claim against the 2nd respondent, was made without the 2nd respondent's participation. This violated the principles of natural justice and fair hearing, as the 2nd respondent was not given an opportunity to be heard on a matter directly affecting its interests. The court held that a consent order cannot be used to bind or prejudice a party who was not involved in its making. Consequently, the consent order was set aside, the claimants' application was to be heard afresh with all parties present, and the 2nd respondent was granted unconditional leave to respond to the...
Court Disposition
application allowed; consent order set aside; matter to be heard afresh with all parties.
Orders
- The consent order recorded on 5th November 2015 is set aside.
- The claimants' application dated 3rd July 2015 shall be heard afresh.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
CAUSE NUMBER 10 OF 2012
BETWEEN
JOSEPH ASHIOYA & 165 OTHERS……………………………………………………..…….CLAIMANTS
VERSUS
1. KENYA UNITED STEEL CO. LTD……..……………………………………......……..1ST RESPONDENT
2. PRICE WATER HOUSE COOPERS………….…………………….…….….....…….2ND RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
___________________________
Ms. Mbogo Advocate instructed by Kituo Cha Sheria Advocates for the Claimants
Mr. Makokha Advocate, instructed by the Federation of Kenya Employers for the 1st Respondent
Mr. Njeru Advocate instructed by Kaplan & Stratton Advocates for the 2nd Respondent
____________________________________________________________________________
RULING
1. On 5th November 2014, Ms. Mbogo for the Claimants, and Mr. Makokha for the 1st Respondent appeared before the Court. The 2nd Respondent was absent. They recorded a Consent Order. The Claimant’s Application dated 3rd July 2014 was allowed by Consent.
2. The effect was to bring back the 2nd Respondent into the proceedings. In its Ruling dated 26th July 2013, the Court had discharged the 2nd Respondent from the proceedings on the basis of improper joinder.
3. Aggrieved, the 2nd Respondent filed the Application dated 5th March 2015. It seeks to have the Consent Order recorded by the Claimants and the 1st Respondent set aside; the Claimants’ Application dated 3rd July 2014 be re-heard with the participation of the 3 Parties; and the 2nd Respondent granted unconditional leave to reply to that Application.
4. Parties agreed to have the 2nd Respondent’s Application considered and determined by the Court, on the strength of their Affidavits, Judicial Authorities and Submissions, on record.
The Court Finds:-
5. It is crystal clear the Consent Order between the Claimants and the 1st Respondent did not involve the 2nd Respondent. The result was to reinstate the Claim against the 2nd Respondent, without the participation of the 2nd Respondent, a Claim which had validly been dismissed by the Court.
6. The Claimants and the 1st Respondent had an obligation to bring all the facts before the Court, in registering their Consent of 5th November 2015. Instead, the impression created was that the FKE spoke for both Respondents.
7. The upshot is that the Court finds merit in the 2nd Respondent’s Notice of Motion dated 5th March 2015. IT IS ORDERED:-
a) The Consent Order recorded on 5th November 2015 is set aside.
b) The Claimant’s Application dated 3rd July 2015 be heard afresh.
c) The 2nd Respondent is granted unconditional leave to respond to that Application.
d) Parties to fix a hearing date once they are ready.
e) Costs of the Application be paid to the 2nd Respondent by the Claimants and the1st Respondent.
Dated and delivered at Mombasa this 11th day of September, 2015
James Rika
Judge