https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1776

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** *(Before Hon. Lady Justice Monica Mbarũ)* **CAUSE NO. 4 OF 2017** **ADLINI MAWA MWIKAMBA 1ST CLAIMANT** **WILSON NGWANYO MAGANGA 2ND CLAIMANT** *VERSUS* **TEITA ESTATES LIMITED RESPONDENT** **RULING** The 2nd claimant, Wilson Ngwanyo Maganga, filed an application dated 2 March 2026 under the provisions of section 3 of the Employment and Labour Relations Court Act, Order 9 rule 9, Order 51 rule 1 of the Civil Procedure Rules, seeking orders: 1. Spent. 2. Spent. 3. The court be pleased to grant leave to the firm of M. Ibrahim & Associates Advocates to come on record for the claimants, and the Notice of Change of Advocates dated 1 March 2026 be deemed as properly filed. 4. The court be pleased to set aside the consent dated 9 July 2018 and order that the claimant’s case be heard on merit. 5. Upon setting aside the impugned consent, the court be pleased to declare the respondent is at liberty to counterclaim/set off against the claimants and/or their former advocates for any sums received under the consent dated 9 July 2018. 6. This court be pleased to declare the deduction of Ksh. 49,204 from each of the claimants by their former counsel, M/S Angeline Omollo Advocates, was illegal, unconscionable and unlawful, the said advocates having already been paid Ksh. 60,000 in costs and disbursements by the respondent under the consent dated 9 July 2018. 7. This court be pleased to order the claimant’s former counsel, Angelne Omollo Advocates, by themselves, current or former partners, to refund the claimant the illegal deduction of Ksh. 49,204 made from each of them in performance of the terms of the consent dated 9 July 2018. 8. The court be pleased to make any further orders as it deems necessary to meet the ends of justice. 9. Cost of the application The application is supported by the 2nd claimant, who avers that in June 2024, he learned that his advocate had secretly settled the suit by consent dated 9 July 2018. The discovery was made during a visit to the court registry, after being unable to obtain information from the advocate who had closed the office in Voi and relocated without notice. The consent was entered through fraudulent misrepresentation by counsel who had not been instructed by the claimants and did not share such information about the consent. The 2nd claimant avers in his affidavit that, together with the 1st claimant, they moved the Advocates Complaints Commission through complaints dated 13 June 2024, in which they challenged the consent entered by Advocates without their consent or instructions. The advocate had not remitted the funds to them. In her response to the complaint, counsel stated that her law firm partnership, the subject of the complaint, had been dissolved in 2014; hence, the consent dated 9 July 2018 was a sham, a forgery, and contrary to judicial policy. The 2nd claimant avers that, being aggrieved by the expectations of the Advocates' Complaints Commission and, as such, unable to obtain any relief, he was left with a mere Ksh. 64,622 instead of Ksh. 995,506.20 award, his case should proceed for a hearing, despite the consent order awarding Ksh. 64,622, the former advocate went ahead to deduct Ksh. 60,000 in cost, whereas the respondent had already settled such costs. The claimant avers that he should be allowed a full hearing of his case, and that the former advocates should refund all payments already received, or that these should be offset against his award. In reply, the respondent, Teita Estates Limited, filed an application dated 17 March 2026 under the provisions of Order 9, rule 13, seeking orders: 1. That leave be granted to the firm of D.L.O. Advocates LLP to come on record for the respondent/applicant. 2. Upon grant of prayer (a), the court be pleased to grant leave to the respondent to file the respondent's Notice of Change of Advocate and Replying Affidavit and to admit the same as being properly on record. The respondent filed the Replying Affidavit of Caroline Makena, a Legal Officer who avers that the firm of Kishore Nanje Advocates had been engaged to appear and defend the claimants' claim. Efforts to trace the advocates are futile. The office changes, and emails are not received. The respondent has since retained the firm of DLO Advocates LLP to act in this matter and has therefore sought leave to change advocates. In the Replying Affidavit, Makena avers that she is aware that the 1st claimant has died. The claim for alleged unfair termination of employment that survives the claimant's death vests in the estate. No formal application has been made for the substitution of the 1st claimant since death on 1 July 2022. There is no legal representation of the estate of the deceased claimant. Makena avers that the consent order was issued on 9 July 2018, over 8 years ago. The 2nd claimant admits that he discovered the consent order in 2024. There has been an inordinate delay in addressing the matter. The 2nd claimant avers in his affidavit that the respondent’s advocate induced his counsel and, through collusion, entered a consent to settle the matter. This assertion is made without proof. The consent dated 9 July 2018 was entered by both advocates for the parties in good faith. The respondent cannot be held liable for such mutual consent. The respondent has since fully performed its part and paid Ksh. 60,000 to the claimants’ advocates. The respondent is not privy to any internal miscommunications between the claimants and their advocates regarding the disbursement of funds. At the time the consent was entered, the claimants’ advocate held themselves as competent to act for them. The claimant had instructions from the firm of Omollo Onyango & Co. Advocates, and those instructions had not been withdrawn at the time the consent order was recorded. There are no justified grounds to set aside the consent order. The Advocates Complaints Commission (ACC) investigated the dispute involving the former advocates, who resolved the complaint by paying a settlement sum. The ACC thus marked that the matter was resolved. The efforts by the 2nd claimant to pursue the original claim for Ksh. 995,506.20 is without justification, and the instant application should be dismissed with costs. In the Supplementary Affidavit, the respondent avers that, in settlement of the claimant's claim, a cheque dated 17 September 2018 for Ksh. 670,356 is issued to its former advocates, Kishore Nanje Advocates, in settlement of the matter. The cheque No. 005987 was consolidated and included 6 court matters being handled by the advocate, including payments to the claimants. The former advocates issued a letter stating that they had transmitted payment to the claimants’ advocates. The claimants' application is without merit and should be dismissed. The 2nd claimant filed his Further Affidavit and avers that the respondent has not sought leave to appoint new advocates who have failed to file the necessary records to confirm payment under the consent order. Both parties agreed and filed written submissions. These are analysed, and the issues which emerge for determination are: 1. Whether the parties should be allowed to appoint new advocates post the consent order and judgment herein issued on 10 July 2018, upon the consent of the parties dated 9 July 2018. 2. Whether the court should set aside the consent judgment herein. It is not contested that the 1st claimant is deceased. Indeed, the instant application is filed by the 2nd claimant, save that he avers that the claimants’ case should be heard on merit. Judgment through consent was entered herein on 10 July 2018. Such matter closed these proceedings based on the consent filed by the parties on 9 July 2018. The 1st claimant died post such order and judgment, and hence section 24 of the Employment Act (the Act) does not apply. Each party seek to apply Order 9 Rule 9 to have new advocates on record. The 2nd claimant asserts that the firm representing him has since been dissolved. This was confirmed by the ACC when he filed his complaint. The respondent also asserts that communication with the previous advocates has not borne fruit, hence the need to have new advocates on record to attend here. A dissolved law firm ceases to exist. The 2nd claimant cannot deal with such a non-existent entity. The respondent, too. The judgment herein was issued over 8 years ago. An employer such as the respondent may keep records for up to 5 years under sections 10(6) and 10 (7) of the Act. Indeed, section 74 of the Act cannot apply after such a long lapse, beyond 5 years. The application to appoint new advocates by both parties becomes necessary. This is allowed. The sole reason for the 2nd claimant in seeking to reopen the proceedings herein is that, upon the consent order, he had not given his advocate any such instructions; he was not paid, and in any event, upon his search, he has discovered that despite his advocate being paid full costs by the respondent, the same were deducted from his payment. The matter has since been reported to the ACC. The complaint was against Omollo Onyango & Co. Advocates. The complaint was sent to the firm of Advocates. On 17 July 2024, Ms Omollo Advocate responded to the ACC. She indicated that the law firm had two partners with breaches in Mtwapa, Malindi, and Voi. The request was for the client to visit the office to help locate the file and calculate the costs to be deducted, which should be paid in half, with Onyango Onunga Advocates paying the other half. Reopening these cases will not assist the 2nd claimant. His case is not that injustice was visited upon him by the court entering judgment based on the consent of his appointed advocate. The advocate has since responded to the complaint lodged with the ACC and guided the next steps. Reopening the case for a hearing would defeat the ends of justice for the respondent, as outlined above, regarding the custody of work records beyond the legal threshold of 5 years, pursuant to sections 10 and 74 of the Act. The 2nd claimant, as the rightful holder, has not explained his whereabouts since filing the suit in 2018. The 8-year delay in seeking out his advocates to advance his case is not addressed at all. No vigilance was demonstrated in this regard. Save to make complaints against his advocates, the respondent is not at fault for attending and settling the claim to avoid unnecessary court attendance. The 2nd claimant ought to have sought out his advocates within a reasonable time after filing his claim and sought a hearing or urged his case. His right to change advocates, where he found his then advocate uncooperative or could not be traced, was not invoked. **The application dated 2 March 2026, thus filed with inordinate delay, can only amount to an abuse of the court process. It is without merit and is hereby dismissed. The 2nd claimant shall meet the costs due to the respondent.** **Delivered in open court this 29th day of June 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Samuel Maruga** ……………………………………………… and …………………………………..…………..