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ELRCPartially AllowedNot stated in judgment

Saka & 32 others v Henkel Polymer Co. Ltd t/a Henkel Chemiclas (EA) Ltd (Cause E421 of 2022) [2025] KEELRC 34 (KLR)

Employment and Labour Relations Court
17 January 2025
SRStella Rutto
1,536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Settling a case through mediation doesn't automatically waive costs—Kenya's Employment Court awarded the successful employees their legal costs anyway.

What this practically means

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Executive summary

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This ELRC judgment at Nairobi, delivered by Stella Rutto J on 17 January 2025, determines the single outstanding issue of costs after the parties settled the main claim through mediation. Under a Mediation Settlement Agreement dated 20 August 2024, the Respondent agreed to pay the Claimants Kshs. 20,723,190.23 in settlement of their claim for dues arising from a redundancy exercise, with Clause E referring costs to the Court. The Claimants submitted that costs follow the event, having been compelled to sue to secure their dues, relying on Baridi Felix Mbevo and Party Independent Candidate of Kenya. The Respondent urged that all parties were winners in a successful mediation marked by reconciliation, and that it would be unjust to condemn any party to costs, citing Jasbir Singh Rai, Bukusu v Kizito and John Njogu. The Court applied Section 27 of the Civil Procedure Act, under which costs are discretionary and follow the event unless the court otherwise directs. Drawing on Republic v Rosemary Wairimu Munene, David Kiptum Korir v Kenya Commercial Bank and especially Morgan Air Cargo v Evrest Enterprises, the Court held that settlement is not an automatic disentitlement to costs and that a successful party exists even in consent settlements. Since the mediation result was in favour of the Claimants and their dues were largely statutory entitlements, the Claimants were successful litigants and were awarded costs, to be taxed by the Deputy Registrar. The Respondent did not appear at the delivery.

Questions the Court framed

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

  1. 1.Which party should bear the costs of the suit following settlement through mediation

Key legal issues

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01

Whether parties who settle a claim through mediation should nonetheless be awarded costs of the suit

Holding

Costs were awarded to the Claimants as the successful litigants notwithstanding the mediated settlement

Reasoning

Section 27 of the Civil Procedure Act gives the court discretion, with costs following the event unless the court otherwise directs. Settlement by consent is not an automatic disentitlement to costs. Applying Morgan Air Cargo, the court looked at the result of the entire litigation: the mediation settlement was in favour of the Claimants, whose dues were largely statutory entitlements, making them the successful parties.

p. 3

Legal principles established

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  • Settlement of a matter by consent or mediation is not a bar to an award of costs; a successful party may still be identified

Court orders

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  1. 1.Claimants, being the successful litigants, are awarded costs of the suit
  2. 2.Costs to be taxed by the Deputy Registrar of the Court

The bench

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

SR
majority

Wrote the judgment

Jurisdiction invoked
Section 27 of the Civil Procedure Act (costs discretionary; costs follow the event unless court otherwise directs)

Quotable passages

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

In light of the foregoing, the Claimants herein being the successful litigants, are awarded costs which shall be taxed by the Deputy Registrar of the Court.
p. 3Final orders - award of costs
Therefore, despite the matter being settled through mediation, the Claimants herein are not disentitled to costs.
p. 3Settlement no bar to costs
the settlement of a matter whether by consent or otherwise, is not a bar to costs. In addition, settlement of a case by consent does not necessarily mean there is no successful party.
p. 3Consent settlement and costs (as stated in David Kiptum Korir v Kenya Commercial Bank)

Issues in the judgment

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minor

The judgment does not state the case number, names of the parties, or the cause number; the brief title and party names are reconstructed from the narrative.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Saka & 32 others v Henkel Polymer Co. Ltd t/a Henkel Chemiclas (EA) Ltd (Cause E421 of 2022) [2025] KEELRC 34 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/34/eng@2025-01-17

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