Barnabas Otwani Barasa v Principal Secretary Ministry of Interior & Coordination of National Government & 2 others [2021] KEELRC 1410 (KLR)
The bottom line
#A Kenyan employment court refused to reopen a settled case, confirming consent orders are final unless you can prove fraud or misrepresentation.
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 court, having marked the matter settled by consent order of 24th February, 2020, is functus officio and without jurisdiction to re-open the claim or grant further relief
- 2.Whether the problems now raised by the claimant relate to the consent orders of 24th February, 2020
- 3.Whether the application dated 29th January, 2021 constitutes an abuse of court process
Key legal issues
#Functus officio and re-opening of a settled matter
Once the matter was marked settled by consent and adopted as a final order, the court could not re-open the claim or entertain further applications absent cogent reasons such as fraud
On 24th February 2020 the parties recorded a consent that the matter be marked settled, and counsel for the claimant confirmed the only outstanding issue was a calculation error of about Ksh.27,000 to be resolved with accountants. The grievances now raised - non-lifting of interdiction, withheld salary and discrimination after acquittal - arose before that date and were unrelated to the consent order. The court therefore lacked jurisdiction to revive the settled claim.
Abuse of court process
The application dated 29th January, 2021 amounted to an abuse of process and was dismissed
The claimant sought to re-litigate matters that were within his knowledge when the matter was marked settled, without alleging fraud, misrepresentation or any untoward circumstances surrounding the consent. Aggrievement with a consent order cannot be cured by a fresh application for mandamus; the proper course is outside the present application. The court accordingly dismissed it with costs.
Legal principles established
#- A consent order adopted as the final order of the court cannot be interfered with absent fraud, misrepresentation or other untoward conduct
- A court that has marked a matter settled by consent becomes functus officio and lacks jurisdiction over extraneous matters
Court orders
#- 1.Application dated 29th January, 2021 dismissed as an abuse of the court process
- 2.Costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute; contempt/enforcement of consent order adopted by the court
Relief refused
#Mandamus compelling the 1st and 2nd respondents to comply with the orders of 24th February, 2020 and allow the claimant to resume employment
The court is functus officio; the matters raised arose before the consent order and are unrelated to it
Lifting of the interdiction and release of withheld half salary since 12th May, 2017
These grievances were within the claimant's knowledge when the matter was marked settled by consent
Costs
Costs to the respondents.
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.
Unless there is claim that such consent order was arrived at through fraud, misrepresentation or other untoward manner, the court cannot interfere with a consent order made in the presence of the parties and adopted as the final order of the court marking the matter settled.
The court cannot re-open the claim without cogent reasons. It stand functus officio and without jurisdiction to address extraneous matters.
Accordingly, application dated 29th January, 2021 is found to be in abuse of the court process and is hereby dismissed. Costs to the respondents.
Issues in the judgment
#Affidavit date inconsistency - supporting affidavit referred to as sworn on 29th February, 2021, a date that does not exist in 2021 (leap year 2020, not 2021)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barnabas Otwani Barasa v Principal Secretary Ministry of Interior & Coordination of National Government & 2 others [2021] KEELRC 1410 (KLR)", Case Analysis (2021). N/A (application dated 29th January, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1410/eng@2021-03-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.