[2017] KEELRC 1328 (KLR)
The court found that the consent decree was validly entered into by the parties, and the applicant failed to establish any factor such as fraud, mistake, or misrepresentation that would justify setting aside or varying the consent. The payment during interdiction was known to both parties at the time of the...
Source-derived case information.
- Citation
- [2017] KEELRC 1328 (KLR)
- Parties
- Claimant: KUDHEIHA Workers; Respondent: Kangema High School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 43 of 2015
- Procedural Posture
- Review Application / Ruling on Application for Review of Consent Decree
- Outcome
- application dismissed with costs
- Judges
- B Ongaya
- Legal Topics
- Review of Consent Decree, Unfair Termination Compensation, Interdiction and Salary, Terminal Benefits Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
KUDHEIHA Workers
Claimant
Kangema High School
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Consent Decree
Legal Issues
- 1 Whether the consent decree can be reviewed or set aside on the basis that the claimant was paid during interdiction.
- 2 Whether the compensation awarded for unfair termination was justified despite the payment during interdiction.
- 3 Whether any factors exist to vitiate the consent agreement between the parties.
Ratio Decidendi
The court found that the consent decree was validly entered into by the parties, and the applicant failed to establish any factor such as fraud, mistake, or misrepresentation that would justify setting aside or varying the consent. The payment during interdiction was known to both parties at the time of the agreement, and the compensation for unfair termination was based on the respondent's delay in releasing terminal benefits, which constituted an unfair labour practice. There was no new evidence or error apparent on the face of the record to warrant review. Therefore, the application for review was dismissed and the consent decree remained in force.
Court Disposition
application dismissed with costs
Orders
- The application for review filed for the respondent on 16.03.2017 is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NYERI
CAUSE NO.43 OF 2015
KUDHEIHA WORKERS................................................CLAIMANT
VERSUS
KANGEMA HIGH SCHOOL....................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Thursday 25th May, 2017)
RULING
The application is filed for the respondent on 16. 03. 2017 through Kimwere Josphat & Company Advocates. The application invokes Rule 32, Employment and Labour Relations Court (Procedure) Rules. The application is based on the supporting affidavit of Gibson Mwangi Chege. It seeks the review of the decree in the suit issued on 25. 10. 2016 and consequential to the review, order 2 in the decree be set aside to the extent that Stephen Mwangi Njoroge is not awarded Kshs.48, 576. 00 being 6 months salaries in compensation for unfair termination. The applicant filed the further supporting affidavit of Gibson Mwangi Chege on 18. 04. 2017.
The decree was by consent and flowing from the consent filed in court on 21. 07. 2016 and dated 19. 07. 2016.
The main ground for review is that the said Stephen was paid during the period of interdiction from 04. 11. 2008 to 31. 12. 2009 and he admits receiving the payment.
The claimants have opposed the application by filing the affidavit of Stephen Mwangi Njoroge on 27. 04. 2017. It is urged that the decree by consent of the parties should not be varied in any manner because it was not obtained by fraud or mistake. It is urged that the 6 months’ compensation was agreed upon due to the long period of time that lapsed before releasing the retirement benefits to the claimants and the parties were alert to the issue and circumstance of interdiction of Stephen Mwangi Njoroge as at the time of the agreement. That since there are no new issues, the application for review should fail.
The court has considered the parties’ submissions. There is no doubt that a valid consent was arrived at and the applicant has not established such factor that would vitiate a contract to justify variation of the decree arrived at by consent of the parties. In any event, there is no reason advanced that links the issue of interdiction to the issue of compensation. The court returns that there is no reason to doubt the claimant’s submission that the agreement on the 6 months’ pay for compensation was founded upon the respondent’s inordinate delay in releasing the grievants’ terminal benefits which was an unfair labour practice and which in the parties’ own negotiations constituted an element of unfair termination. The agreement and the ensuing decree by consent of the parties will therefore stand.
In the circumstances, the application will fail.
In conclusion the application for review filed for the respondent in the suit on 16. 03. 2017 is hereby dismissed with costs.
Signed, datedanddeliveredin court atNyerithisThursday, 25th May, 2017.
BYRAM ONGAYA
JUDGE