ROBERT N. LICHORO & ANOTHER V BONNE N. BARASA & 2 OTHERS [2012] KEELRC 52 (KLR)
The bottom line
#Kenya's Industrial Court upheld a negotiated settlement in a union leadership dispute, ruling that consent agreements bind everyone who signed them and can only be set aside like a contract.
What this practically means
#Executive summary
#Key legal issues
#Validity and binding effect of the Consent Award of 17th October 2012
The Consent Award is proper, valid and binding on all parties who crafted and signed it, including Daniel Yatich, and remains in place except Clause 7 which was struck off by consent
The court found the Consent was entered into freely and voluntarily, overseen by COTU, and that all parties including Yatich (through Guserwa & Company Advocates on record) participated in its crafting. Even if Yatich were not bound, the Consent remains binding between the other eleven signatories; his recourse is review under Rule 32 of the Industrial Court (Procedure) Rules, 2010 on limited grounds.
Capacity and locus standi of the applicants in Cause No.2233 of 2012
The applicants lack capacity to set aside a consent award to which they were not parties and lack locus standi to represent the Union, not being officials
Timothy Muchiri did not disclose in what capacity he brought the suit; the applicants are not officials of the Union. Their recourse as members lies within the Union Constitution to challenge illegal activities of officials or trustees.
Validity of the 13th February 2011 elections
The extract of officials issued by the Registrar of Trade Unions following the 13th February 2011 elections remains valid until any other lawful election under the Union Constitution
Challenges to the Registrar's decision must be filed within 30 days under Section 30 of the Labour Relations Act; no timely appeal was filed. The Consent Award preserved the registered officials, and the court held that the extract is valid until fresh lawful elections.
Clause 7 of the Consent Award (Cause No.160 of 2010)
Clause 7 is struck off the Consent Award by consent of all parties because it concerned parties and a cause not connected to the matters compromised
All parties conceded that Clause 7 was ill-conceived: its subject matter arose from Cause No.160 of 2010 involving 12 unconnected parties, and necessary disclosures which would have led to its exclusion were not made to the court.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
- Review and setting aside of a consent order requires more than ordinary grounds for review
Court orders
#- 1.The Consent Award of 17th October, 2012 is proper and valid and the same is varied only to the extent of expunching Clause 7 thereof
- 2.The Extract of the Aviation & Allied Workers Union (Kenya) officials issued by the Registrar of Trade Unions on 13th February, 2011 is valid until any other lawful election of officials and Trustees is conducted as per the Union's Constitution
- 3.All actions done by the duly elected Union Officials pursuant to the Consent Order of 17th October, 2012 are legitimate and valid to the extent they comply with the law and the Union Constitution
- 4.Audited Accounts of the Union for the past 5 years be conducted by an Independent Firm of Auditors and the Report be submitted to the Court within 30 days
- 5.No order as to costs
- Jurisdiction invoked
- Section 30 of the Labour Relations Act, 2007; Industrial Court (Procedure) Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ROBERT N. LICHORO & ANOTHER V BONNE N. BARASA & 2 OTHERS [2012] KEELRC 52 (KLR)", Case Analysis (2012). Industrial Court Cause Nos. 1056, 1354, 1147, 1604 of 2012 (Consolidated); with 808 of 2012, 160 of 2010, 36 of 2012, 791 of 2012, 1746 of 2011 and 2233 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/52/eng@2012-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.