[2018] KEELRC 409 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 195 OF 2016

(Before Hon. Justice Mathews N. Nduma)

WEST KENYA SUGAR COMPANY LIMITED............CLAIMANT

VERSUS

KENYA UNION OF SUGAR PLANTATION

AND ALLIED WORKERS...........................................RESPONDENT

R U L I N G

1. Notice of motion application dated 18th April, 2017 and filed on 19th April, 2017 seeks the following orders:-

(1) That pending the hearing and determination of the counter claim filed on 15th November, 2016, this honourable court to grant orders for the employer to effect deductions of union dues.

2. A Preliminary Objection was raised to the Application as follows:-

“That by an order made on 10th April, 2017 the Honourable Lady Justice Maureen Onyango marked case No. 195 of 2016 as settled.”

3. The Respondent argues that its counter claim filed on 15th November, 2016 in cause no. 195 of 2016 was not part of the aforesaid settlement and should proceed to hearing. The order of the court partly reads:-

“2. File No. 195 of 2016 which was on issue of strike is marked as settled as the strike was stopped by the court and therefore has lapsed. No further issue is pending on the same.”

4. The Respondent was represented by one Bonface Namanyi Mulomi and the Claimant was represented by one Osoro on 10th April, 2017 when the court marked the matter as settled.

5. On the date, the representative of the Respondent informed the court had he was the duly appointed representative of the Respondent and the matter was coming up for mention to confirm that he was now on record.

6. Mr. Osoro for the Claimant claimed that he had been served by the Respondent with a notice of appointment and sought the court to grant the suit a hearing date.

7. No further presentations were made by the parties.

8. However, the court recorded the aforesaid order and signed it but did not invite the representative of the parties to sign the same.

9. From the papers filed by both parties, the consent order is not disputed and no application to review or set aside the same has been made to the court.

10. The counter claim sought to be heard was part and parcel of case no.195 of 2016 which was marked as settled on 19th April, 2017.

11. The consent order of the court has not been impugned, nor any attempt made to set it aside. To that extent, cause no. 195 of 2016 was resolved by the said consent order and is therefore nonexistent.

12. In selton on judgments and orders 7th edition volume 1 page 24 is provided 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 …… 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 general for a reason which would enable the court to set aside an agreement.”

13. The Applicant has not made any of the above allegations nor is any order sought to set aside the consent order.

14. This position is confirmed by the court of appeal at Nairobi in Civil Appeal No.293 of 2014, in which the court confirmed the Ruling by Lady Justice Ndolo refusing to set aside a consent order.

15. The C. A relied on the decision in Kenya Commercial Bank Limited vs Specialized engineering Co. Limited [1982] KLR 485, where Hannis J held that –

1. A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.

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.

16. Accordingly, the application lacks any grounds upon which the court may set aside or vary the consent order entered into by the parties on 10th April, 2017. The Application is dismissed with costs and file closed in terms of the settlement made vide the consent order.

Ruling Dated, Signed and delivered this 6th day of December, 2018

Mathews N. Nduma

Judge

Appearances

Mr. Bonface Namayi Mulomi for Respondent

Mr. Ogejo for Claimant

Chrispo – Court Clerk