https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2056

Kinyili (Legal Repsentative of the Estate of Boniface Kimathi Mukunzi (Deceased)) v IZWOF Limited & another (Miscellaneous Application E343 of 2025) [2026] KEELRC 2056 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2056 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E343 of 2025 AK Nzei, J July 10, 2026 Between Joyce Munyiva Kinyili (Legal Repsentative of the Estate of Boniface Kimathi Mukunzi (Deceased)) Applicant and IZWOF Limited Respondent and Directline Assurance Company Ltd Interested Party Ruling Background 1.On 10th November, 2025, the Applicant herein (Joyce Munyiva Kinyili) filed a Notice of Motion dated 10th November, 2025 seeking Orders:-a.That the Court adopts the assessment of the Director of Occupational Safety and Health Services filed herein as a Judgment of the Court.b.That a decree for Kshs.3,278,400/= do issue in accordance with the Assessment of the Director of Occupational Safety and Health Services against the Respondent.c.That a declaration do issue that the Respondent has committed an offence contrary to Section 26(6) of the Work Injury Benefits Act for (sic) failing to pay the Applicant.d.That the Court commits the directors of the Respondent to one year in jail or fines them Kshs.500,000/= or both for the offence committed.e.That costs of the application be provided for. 2.The application was predicated on the Applicant’s supporting affidavit sworn on 10th September, 2025 and copies of documents thereto annexed. 3.The Respondent filed a Memorandum of Appearance through Sheik & Company Advocates. The filed Memorandum of Appearance is dated 9th October, 2025. 4.According to the Court’s record herein, a written consent, duly executed by Counsel for the Applicant, the Respondent and the 3rd Party herein on 3rd October, 2025, was filed in this Court on 6th October, 2025. 5.When the matter first came up before me on 16th October, 2025 and Counsel for the Applicant sought the adoption of the said consent as a Judgment of the Court, Counsel for the Respondent requested for time to take instructions (from the Respondent) on adoption of the said filed consent as a Judgment of the Court. The Court granted the request, and fixed the matter for adoption of the Consent on 23rd October, 2025. 6.When the matter came up in Court on 23rd October, 2025, Counsel for the Respondent/Applicant moved the Court to adopt the said consent as a Judgment of the Court. With concurrence by Counsel for the Applicant/Respondent, the written consent was adopted as a Judgment of the Court. The Consent, which became a Judgment (decree) of the Court upon its adoption by the Court as aforementioned, contained a schedule on payment of the decreed sum by the Respondent’s Insurer as follows:-a.10th October, 2025 ………… Kshs.1,000,000/=.b.17th November, 2025 ……… Kshs.500,000/=.c.17th December, 2025 ……… Kshs.500,000/=.d.The balance of the decretal sum and costs of the suit to be paid by equal monthly instalments of Kshs.250,000/= till payment in full. 7.On hearing Counsel as aforesaid, the Court ordered as follows:-“(1)The written consent dated 3/10/2025 and filed herein is hereby adopted as a Judgment of the Court.(2)The Court filed herein is hereby closed.(3)Liberty to apply.” 8.On or about 24th November, 2025, the Respondent filed a Notice of Motion dated 20th November, 2025 against the Applicant, and naming its insurer as an Interested Party therein. The said application is now before me for determination. The Notice of Motion dated 24th November, 2025. 9.The Respondent/Applicant seeks the following Orders:-a.Spent.b.Spent.c.That upon hearing the application inter partes, the application (sic) be pleased to make a declaration that the Applicant/Respondent’s recourse lies against the Interested Party as per the Consent Judgment entered on 23rd October, 2025.d.That upon hearing of the application inter partes, the Court be pleased to set aside [the] execution proceedings against the Applicant, including the warrants of attachment dated 17th November, 2025 issued against the applicant.e.That in the alternative to (c) and (d) above, upon the hearing of the application inter partes, this Court be pleased to stay execution of the decree from the Consent Judgment entered on 23/10/2025 and consequential steps in execution thereof, pending hearing and determination of a declaratory suit-that is Milimani MICCOMMSIS E1615 of 2025.f.That the Court be pleased to issue such further or other orders as it deems expedient to meet the ends of Justice. 10.The application is predicated on the supporting affidavit of Hassan Maalim, the Respondent/Applicant’s Operations Manager, sworn on 20th November, 2025; and is opposed by the Applicant/Respondent vide her replying affidavit sworn on 11th December, 2025. The Interested Party also filed a replying affidavit sworn on 19th December, 2025. It is deponed on behalf of the Interested Party that the Interested Party is a stranger to the orders sought as it never participated in the recording of the Consent. I have considered the affidavits sworn in support of, and in opposition to the application. 11.The consent dated 3rd October, 2025, which this Court adopted as its Judgment on 23rd October, 2025, states in part:-“Misc Application No. E343 Of 2025 . . .By Consent 1.The award given to the applicant by the Director of Occupational Safety and Health Services in respect of the above matter, the sum of Kenya Shillings Three Million Two Hundred and Seventy Eight Thousand Four Hundred (Kshs.3,278,400/=) be adopted as a Judgment of this Court . . .” 12.It is to be noted that the aforesaid award was made by the Director of Occupational Safety and Health Services (the Director). Indeed, the WIBA/DOSH/FORM 4 dated 11th December, 2024, containing the assessment of the awarded sum and a demand for payment thereof, and duly signed by the Director; is addressed to the Respondent/Applicant (IZWOF Limited). Indeed, the award was made against the Respondent/Applicant. This was after the Director had determined the issue of liability pursuant to Section 23(1) of the Work Injury Benefits Act. 13.Further, the Interested Party herein, shown in the Applicant/Respondent’s replying affidavit as having been the Respondent/Applicant’s Insurer, was not party to the suit herein when the decree herein was passed on 23rd October, 2025. The Respondent/Applicant has not demonstrated any valid reason on the basis of which execution of the Court’s decree herein can be stayed and/or re-called. 14.A Consent Judgment or an order entered by parties in a suit has the effect of a binding contract, and is generally binding on them. Courts are usually reluctant to interfere with Consent Judgments/Orders except where there exists sufficient grounds to do so. A Consent Judgment or Order has a contractual effect, and can only be set aside on such grounds as would vitiate a contract. 15.The Court of Appeal (Nyarangi Ag JA) stated as follows in the case of Hirani – vs – Kassam [1952] 19 EACA 131:-“. . . that being so, the Court cannot interfere with it except in such circumstances as would afford good ground for varying or rescinding a contract between the parties. No such ground is alleged here. The position is clearly set out in Seton on Judgments and Orders (7th Edition), Vol. 1, Page 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 . . . and 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 misapprehension or in ignorance of material facts, or in general for a reason which would enable the Court to set aside an agreement.” 16.Further, it was stated as follows in Kenya Commercial Bank Ltd – vs – Specialized Engineering Co. Ltd [1982] KLR 485:-“ 1.. . . 2.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.” 17.In the present case, Counsel representing the Applicant/Respondent and Counsel representing the Respondent/Applicant entered into a valid Consent Judgment, and subsequently moved the Court to adopt it as its Judgment. The mode and timelines for payment of the decreed sum (by the Respondent’s insurer) was stated in the Consent Judgment. There is absolutely no ground on the basis of which the Orders sought by the Respondent/Applicant can be granted by this Court. The Respondent/Applicant seeks recalling of execution proceedings issued by the Court pursuant to a valid decree against it. The prayer for a declaratory order in these proceedings is frivolous, and cannot be entertained by this Court. 18.Consequently, and having considered written submissions filed on behalf of the parties herein, I find no merit in the Notice of Motion dated 20th November, 2025; and the same is hereby dismissed with costs to the decree holder. 19.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026AGNES KITIKU NZEIJUDGEOrderThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.Appearance:Mr. Muia for the Applicant/RespondentNo appearance for the Respondent/ApplicantNo appearance for the Interested Party