Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment (Industrial Cause, application dated 5th July 2010)

Betty Sungura Nyabuto v Law Society of Kenya [2014] KEELRC 148 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
3 October 2014
3,447 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court confirmed that a settlement your lawyer signs binds you unless you can prove fraud, mistake, or misrepresentation between the parties.

What this practically means

#

Executive summary

#
The Respondent (the Law Society of Kenya, as applicant) applied on 5th July 2010 for review and/or setting aside of a consent judgment and/or award dated 2nd June 2010 recorded in favour of the Claimant, contending that its then advocates, M/s Enonda Makoloo, Makori & Co. Advocates, lacked instructions to record the consent. Prayers for urgency, change of advocates, status quo and stay were spent, leaving only review/setting aside, full hearing and costs. The Claimant opposed, arguing there was no error apparent on the record and the application failed the threshold for setting aside consent judgments. Ruling on written and oral submissions, the court framed the issues as whether the advocate had express or implied authority, whether the consent met the required threshold, and costs; it declined to entertain the Respondent's issues on the Law Society's status as a public body, public policy and fair trial. Applying Flora N. Wasike v Destimo Wamboko and Kenya Commercial Bank v Specialised Engineering, the court held that consent judgments can only be set aside on grounds such as fraud, mistake or misrepresentation between the parties, and that an advocate has general authority to compromise absent an express negative direction. The court found the Respondent knew of the varied settlement offer of 30th March 2010, copied to its Secretary, and did not object; it was therefore estopped from denying the advocate's authority. No fraud, mistake or misrepresentation was proved, and the application also failed under Rule 32 of the Industrial Court (Procedure) Rules, 2010. The application was dismissed with costs to the Claimant.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Advocate for the Respondent had express or implied instructions to enter into the consent judgment/award dated 2nd June 2010
  2. 2.Whether the consent order fulfilled the legal and legitimate threshold of such an order
  3. 3.Whether the consent judgment should be reviewed and/or set aside under Rule 32 of the Industrial Court (Procedure) Rules, 2010
  4. 4.Who should bear the costs of the application

Key legal issues

#
01

Whether the Respondent's advocate had authority to record the consent judgment

Holding

The advocate had implied authority; the Respondent, having been informed of the varied settlement offer and not objecting for over three months, was estopped from denying his authority.

Reasoning

The Respondent instructed its advocate to propose settlement; a letter of 30th March 2010 with varied, more generous terms was copied to the Respondent's Secretary/CEO. No objection was raised by the CEO or Council until after the consent was recorded and executed. The court held that an unobjected-to offer remained open for acceptance and that silence estopped the Respondent from denying the advocate's authority. No affidavit from the Chairman denied the 'previous discussions and agreement' referred to by the advocate.

p. 6
02

Whether there was fraud, mistake or misrepresentation justifying setting aside the consent

Holding

No fraud, mistake or misrepresentation was established on the part of the Claimant or the advocate.

Reasoning

Applying Flora N. Wasike v Destimo Wamboko and Kenya Commercial Bank v Specialised Engineering, the court held that a consent order binds unless obtained by fraud or contrary to the policy of the court, and that the relevant misapprehension is between parties, not between advocate and client. The Respondent's complaint was essentially about the principles of settlement its advocate accepted, which does not meet the threshold.

p. 6
03

Whether the consent judgment could be reviewed under Rule 32 of the Industrial Court (Procedure) Rules, 2010

Holding

The application did not fit any ground of review under Rule 32, though the court noted this was a technical point it would not have relied on alone.

Reasoning

Review under Rule 32 requires discovery of new and important matter, mistake or error apparent on the face of the record, breach of written law, need for clarification, or other sufficient reason. The Respondent's advocates addressed none of these grounds: there were no new facts unknown at the time the consent was recorded, no error on the face of the record, and no allegation that the award breached any written law.

p. 6

Legal principles established

#
  • A consent judgment may only be set aside on the same grounds as would justify setting aside a contract, such as fraud, mistake or misrepresentation.
  • An advocate has general authority to compromise a client's case, and in the absence of proof of an express negative direction, a consent order entered by counsel is binding.
  • The fraud, mistake or misrepresentation that would justify setting aside a consent order is between the parties, not between an advocate and client.

Court orders

#
  1. 1.The Respondent's application dated 5th July 2010 seeking review and/or setting aside of the consent judgment/award dated 2nd June 2010 is dismissed
  2. 2.Costs of the application awarded to the Claimant

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Industrial Court (Procedure) Rules, 2010, Rule 32; Order 45 Rule 1 Civil Procedure Rules

Relief refused

#

Review and/or setting aside of the consent judgment and/or award dated 2nd June 2010 and that the matter proceed to full hearing

No fraud, mistake or misrepresentation was proved; the advocate had implied authority as the Respondent did not object to the settlement offer; and the application did not meet the Rule 32 review threshold

p. 6

Costs

Application dismissed with costs to the Claimant

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having not raised any objection until after the proposal had been accepted and recorded as a decision of the court more than 3 months later, the Respondent is estopped from denying the authority of Mr. Enonda to proceed with the settlement in terms of the offer.
p. 6Implied authority of advocate and estoppel
An advocate has general authority to compromise on behalf of his client as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding.
p. 5Advocate's authority to compromise
For the foregoing reasons I find the application without merit and dismiss it with costs to the claimant.
p. 6Final orders / disposition

Issues in the judgment

#
minor

The judgment states prayers 1, 2, 3, and 4 are spent, yet then says the pending prayers are '4, 5, 6 and 7', duplicating prayer 4; the citation of the Wasike appeal year is printed as '2984'; and the letter conveying the settlement is dated 4th June 2010 in one place but '4th June 2014' elsewhere; a reference also appears to 'Order 32 of the Industrial Court Act' when Rule 32 of the Industrial Court (Procedure) Rules is meant.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Betty Sungura Nyabuto v Law Society of Kenya [2014] KEELRC 148 (KLR)", Case Analysis (2014). Not stated in judgment (Industrial Cause, application dated 5th July 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/148/eng@2014-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.