[2018] KEELRC 1823 (KLR)
The court found that there was no evidence of coercion, duress, or misrepresentation in the execution of the consent order. The claimant freely drafted, signed, and filed the consent, and appeared before the Deputy Registrar for its adoption. The claimant received the agreed sum in full and final settlement. The...
Source-derived case information.
- Citation
- [2018] KEELRC 1823 (KLR)
- Parties
- Applicant: Miriam Atieno; Respondent: Muhammed Swaleh; Respondent: Nemo Swaleh
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 259 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Consent Order
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Setting Aside Consent Orders, Duress and Coercion, Final Settlement, Advocate Participation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miriam Atieno
Applicant
Muhammed Swaleh
Respondent
Nemo Swaleh
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order dated 24th August, 2017 should be set aside on grounds of duress, coercion, or misrepresentation.
- 2 Whether the claimant was misled or coerced into signing the consent order.
- 3 Whether the absence of the advocate's involvement invalidates the consent.
Ratio Decidendi
The court found that there was no evidence of coercion, duress, or misrepresentation in the execution of the consent order. The claimant freely drafted, signed, and filed the consent, and appeared before the Deputy Registrar for its adoption. The claimant received the agreed sum in full and final settlement. The absence of the advocate's involvement did not invalidate the consent, as the claimant had filed a notice to act in person. Therefore, the application to set aside the consent order was without merit and constituted an abuse of the court process.
Court Disposition
application dismissed
Orders
- The application to set aside the consent order is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 259 OF 2017
(Before Hon. Justice Mathews N. Nduma)
MIRIAM ATIENO ..........................................................................CLAIMANT
VERSUS
MUHAMMED SWALEH ………….....…………...……1ST RESPONDENT
NEMO SWALEH ………………..……....……………..2ND RESPONDENT
R U L I N G
1. Applicant/Claimant seeks to set aside the consent dated 24th August, 2017 filed in court on 25th August, 2017 on the basis that Claimant was, misled, and coerced by the Respondent. That having acted under duress, the consent order be set aside and Applicant /Claimant be allowed to prosecute her claim to its logical conclusion.
2. The applicant/Claimant concede having received Kshs.20,000 from the Respondent even though, according to her she ought to have been paid Kshs.496,143, compensation sought in the Memorandum of Claim.
3. That the Respondent had promised to pay the full amount through the Claimant’s advocates which sum has not been paid. That the advocate was not involved in the consent yet he was on record.
4. That it is in the interest of justice that the consent be set aside.
5. The suit was filed by M/s. Chepkwony & co. advocates for the Claimant on 9th June, 2017. On 25th August 2017, the Claimant filed a notice to act in person dated 24th August, 2017 which notice was copied to M/s Chepkwony & Company Advocates. On the same date the Claimant and the 1st and 2nd Respondents filed a consent signed by all the three parties. The consent is drawn by the claimant herself. The consent reads:-
“By consent of the parties herein the claimant be and is hereby paid a sum of Kshs.20,000 being full and final settlement in this matter and that this matter be hereby marked as settled.”
6. The consent was placed before the Deputy Registrar, E & LRC on the same date and was adopted as an order of the court and the matter marked settled.
7. There is no iota of evidence that the Claimant was coerced or misled to draft the consent, sign it and file it, herself before court.
8. A consent may only be set aside if there is evidence of fraud, coercion, duress or misrepresentation on the part of one party, especially if such a party is perceived to be dominant and therefore having undue influence on the other.
9. There is no such evidence disclosed in the application itself or the supporting affidavit. The facts speak for themselves in this matter. The claimant walked freely to court having drafted a consent signed by the parties, filed the consent herself, and appeared before the Deputy Registrar to have the said consent adopted as an order of the court. The Applicant thereafter received the agreed amount in full and final settlement of the case.
10. The Application is vexatious and an abuse of the court process. The same is dismissed with no order as to costs.
Ruling Dated, Signed and delivered this 6th day of June, 2018
Mathews N. Nduma
Judge
Appearances
Claimant in person
Respondents in person
Chrispo – Court Clerk