Betty Sungura Nyabuto v Law Society of Kenya [2014] KEELRC 148 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Advocate for the Respondent had express or implied instructions to enter into the consent judgment/award dated 2nd June 2010
- 2.Whether the consent order fulfilled the legal and legitimate threshold of such an order
- 3.Whether the consent judgment should be reviewed and/or set aside under Rule 32 of the Industrial Court (Procedure) Rules, 2010
- 4.Who should bear the costs of the application
Key legal issues
#Whether the Respondent's advocate had authority to record the consent judgment
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.
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.
Whether there was fraud, mistake or misrepresentation justifying setting aside the consent
No fraud, mistake or misrepresentation was established on the part of the Claimant or the advocate.
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.
Whether the consent judgment could be reviewed under Rule 32 of the Industrial Court (Procedure) Rules, 2010
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.
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.
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.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.Costs of the application awarded to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
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.
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.
For the foregoing reasons I find the application without merit and dismiss it with costs to the claimant.
Issues in the judgment
#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.