1. By a motion dated 3rd April, 2023 the respondent/applicant sought orders among others THAT:
a) THIS Court be pleased to issue temporary stay of execution of the ruling and orders of Hon. Monica Mbaru J issued on 28th March, 2023 pending the hearing of this application.
b) THIS Honourable Court be pleased to review/vary/discharge and or set aside the ruling and orders made by Hon. Lady Justice Mbaru on 28th March, 2023 in this petition.
c) UPON the grant of prayer 3 hereinabove, the Honourable Court be pleased to adopt the consent filed on 16th March, 2023 withdrawing the petitioner’s application dated 15th March, 2023 with no order as to costs as final orders of the Court and mark file closed.
2. The application was based on grounds inter alia:
a) THAT the petitioner/applicant filed a contempt application dated 15th February, 2023. The application was argued orally on 27th February, 2023 upon which the Court stood down the application for ruling on notice.
b) THAT pending the ruling on notice, parties entered into negotiations with a view of settling all the outstanding disputes and pending matters before the honourable Court and Court of Appeal amicably. Parties resolved that:
i) A consent withdrawing the petitioner/applicant’s contempt application dated 15th February, 2023 be filed before close of business on 16th March, 2023
ii) The respondent files withdrawal notices of all applications and appeals pending before the Court of Appeal against the judgment and ruling of the honourable court
iii) The petitioner/applicant reports back to her employer/KeRRA.
c) THAT a consent dated 15th March, 2023 and signed by both parties withdrawing the applicant’s contempt application was filed on 16th March, 2023. The said consent was brought to the attention of the trial court through the petitioner’s letter to the Deputy Registrar dated 15th March, 2023 and filed together with the consent.
d) THAT the trial court delivered a ruling on 28th March, 2023. In allowing the application the court made the following orders:
i) I do allow the application dated 15th February, 2023 and impose upon the respondent’s director general and chief executive officer a fine of Kshs. 100,000/- (one hundred thousand shillings) for being in contempt of court orders of 30th June, 2022. The said fine to be paid within thirty (30) days failing which the respondent shall be committed to civil jail for a period three (3) months.
ii) The petitioner awarded costs of this application
e) THAT there was no application for the court to deliver upon a ruling as the application dated 15th February, 2023 had been compromised and withdrawn through consent filed on 16th March, 2023.
f) THAT the present application was extremely urgent and merits allowing as the ruling implicated myself yet the authority had fully complied with the judgment of the Court delivered on 30th June, 2022 and the ruling delivered on 19th December, 2022 and the petitioner acknowledged by withdrawing the application dated 15th February, 2023.
g) THAT the applicant is apprehensive that if the orders sought are not granted, the applicant will have to pay a fine from his account and or committed to civil jail hence taking away his right to liberty and property.
3. The Petitioner/respondent filed a Replying Affidavit in which she stated in the main that:
a. The consent dated 15th March, 2023, the subject matter of the application has been overtaken by events to the extent that the parties were not able to arrest the ruling subsequently delivered on 28th March in respect of my application dated 15th February, 2023.
b. The consent therein dated 15th March, 2023 was not adopted by the honourable court as its order. I would however be vigorously objecting to the adoption of the consent as subsequent happenings have only confirmed that the respondent/applicant’s director general was out to dupe me into clearing him of contempt yet on his part he was bent on continuing with the breach of this honourable court’s order that directed the respondent to reinstate me to my position of deputy director, supply chain management.
4. It was not contested that the parties herein entered in a consent prior to the delivery of the ruling by the Honourable Court (Mbaru J) on 15th March, 2023. The Petitioner however contends that the consent was never adopted as the order of the Court and further that the respondent/applicant’s director general was out to dupe her into clearing him of contempt yet on his part yet he was bent on continuing with the breach of this honourable court’s order that directed the respondent to reinstate her to her position of deputy director, supply chain management.
5. Lord Denning in the celebrated case of Central London Property Trust Ltd. v. High Trees House Ltd. [1947] K-B. 130 (1946) ( famously known as the "High Trees Case"), stated as follows:
“The law has not been standing still since Jorden v. Money. There has been a series of decisions over the last fifty years which, although they are said to be cases of estoppel are not really such. They are cases in which a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made, and which was in fact so acted on. In such cases the courts have said the promise must be honored .... The courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it” (emphasis added).
6. It is not in dispute that the parties herein entered into a consent on15th March, 2023 the intention of which was to settle or compromise the dispute subject of this claim and other matters related to it, pending in the Court of Appeal. The intention of the consent was to create a legally binding relationship between the parties. It would therefore not be right to argue that simply because such consent was never adopted by the Court, it ceased to be binding as contract inter partes. To entertain such an argument would not only allow room for mischief but also water down the purpose and use of consents in amicably resolving disputes making them unreliable, unpredictable and of no use.
7. The Court of Appeal in the case of Kenya Commercial Bank Ltd v. Specialized Engineering Co. Ltd (1982) KLR P. 485 held that:
“A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or by an agreement contrary to the Policy of the Court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the Court to set aside an agreement.
8. The Petitioner has averred that the respondent duped her into entering into the consent. That may be so but a consent remains binding as a contract and may be set aside only on the same principles as those of setting aside a contract such as fraud or illegality. There is no application before me for the setting aside of the consent herein. All there is are allegations in the Petitioner’s replying affidavit that she was duped into entering into the consent.
9. Regarding the contention that the parties failed to arrest the ruling of the Court hence the consent is not binding, this cannot be correct because parties at any stage including after delivery of a judgment can enter into a consent.
10. In conclusion the court finds the application merited and hereby allows the same as prayed with the consequence that the petition herein is hereby marked finally settled in terms of the consent dated 15th March, 2023
11. It is so ordered.
Dated and delivered at Nairobi this 3rd day of August, 2023
Abuodha Nelson Jorum
Judge
ELRC
a) THIS Court be pleased to issue temporary stay of execution of the ruling and orders of Hon. Monica Mbaru J issued on 28th March, 2023 pending the hearing of this application.
b) THIS Honourable Court be pleased to review/vary/discharge and or set aside the ruling and orders made by Hon. Lady Justice Mbaru on 28th March, 2023 in this petition.
c) UPON the grant of prayer 3 hereinabove, the Honourable Court be pleased to adopt the consent filed on 16th March, 2023 withdrawing the petitioner’s application dated 15th March, 2023 with no order as to costs as final orders of the Court and mark file closed.
2. The application was based on grounds inter alia:
a) THAT the petitioner/applicant filed a contempt application dated 15th February, 2023. The application was argued orally on 27th February, 2023 upon which the Court stood down the application for ruling on notice.
b) THAT pending the ruling on notice, parties entered into negotiations with a view of settling all the outstanding disputes and pending matters before the honourable Court and Court of Appeal amicably. Parties resolved that:
i) A consent withdrawing the petitioner/applicant’s contempt application dated 15th February, 2023 be filed before close of business on 16th March, 2023
ii) The respondent files withdrawal notices of all applications and appeals pending before the Court of Appeal against the judgment and ruling of the honourable court
iii) The petitioner/applicant reports back to her employer/KeRRA.
c) THAT a consent dated 15th March, 2023 and signed by both parties withdrawing the applicant’s contempt application was filed on 16th March, 2023. The said consent was brought to the attention of the trial court through the petitioner’s letter to the Deputy Registrar dated 15th March, 2023 and filed together with the consent.
d) THAT the trial court delivered a ruling on 28th March, 2023. In allowing the application the court made the following orders:
i) I do allow the application dated 15th February, 2023 and impose upon the respondent’s director general and chief executive officer a fine of Kshs. 100,000/- (one hundred thousand shillings) for being in contempt of court orders of 30th June, 2022. The said fine to be paid within thirty (30) days failing which the respondent shall be committed to civil jail for a period three (3) months.
ii) The petitioner awarded costs of this application
e) THAT there was no application for the court to deliver upon a ruling as the application dated 15th February, 2023 had been compromised and withdrawn through consent filed on 16th March, 2023.
f) THAT the present application was extremely urgent and merits allowing as the ruling implicated myself yet the authority had fully complied with the judgment of the Court delivered on 30th June, 2022 and the ruling delivered on 19th December, 2022 and the petitioner acknowledged by withdrawing the application dated 15th February, 2023.
g) THAT the applicant is apprehensive that if the orders sought are not granted, the applicant will have to pay a fine from his account and or committed to civil jail hence taking away his right to liberty and property.
3. The Petitioner/respondent filed a Replying Affidavit in which she stated in the main that:
a. The consent dated 15th March, 2023, the subject matter of the application has been overtaken by events to the extent that the parties were not able to arrest the ruling subsequently delivered on 28th March in respect of my application dated 15th February, 2023.
b. The consent therein dated 15th March, 2023 was not adopted by the honourable court as its order. I would however be vigorously objecting to the adoption of the consent as subsequent happenings have only confirmed that the respondent/applicant’s director general was out to dupe me into clearing him of contempt yet on his part he was bent on continuing with the breach of this honourable court’s order that directed the respondent to reinstate me to my position of deputy director, supply chain management.
4. It was not contested that the parties herein entered in a consent prior to the delivery of the ruling by the Honourable Court (Mbaru J) on 15th March, 2023. The Petitioner however contends that the consent was never adopted as the order of the Court and further that the respondent/applicant’s director general was out to dupe her into clearing him of contempt yet on his part yet he was bent on continuing with the breach of this honourable court’s order that directed the respondent to reinstate her to her position of deputy director, supply chain management.
5. Lord Denning in the celebrated case of Central London Property Trust Ltd. v. High Trees House Ltd. [1947] K-B. 130 (1946) ( famously known as the "High Trees Case"), stated as follows:
“The law has not been standing still since Jorden v. Money. There has been a series of decisions over the last fifty years which, although they are said to be cases of estoppel are not really such. They are cases in which a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made, and which was in fact so acted on. In such cases the courts have said the promise must be honored .... The courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it” (emphasis added).
6. It is not in dispute that the parties herein entered into a consent on15th March, 2023 the intention of which was to settle or compromise the dispute subject of this claim and other matters related to it, pending in the Court of Appeal. The intention of the consent was to create a legally binding relationship between the parties. It would therefore not be right to argue that simply because such consent was never adopted by the Court, it ceased to be binding as contract inter partes. To entertain such an argument would not only allow room for mischief but also water down the purpose and use of consents in amicably resolving disputes making them unreliable, unpredictable and of no use.
7. The Court of Appeal in the case of Kenya Commercial Bank Ltd v. Specialized Engineering Co. Ltd (1982) KLR P. 485 held that:
“A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or by an agreement contrary to the Policy of the Court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the Court to set aside an agreement.
8. The Petitioner has averred that the respondent duped her into entering into the consent. That may be so but a consent remains binding as a contract and may be set aside only on the same principles as those of setting aside a contract such as fraud or illegality. There is no application before me for the setting aside of the consent herein. All there is are allegations in the Petitioner’s replying affidavit that she was duped into entering into the consent.
9. Regarding the contention that the parties failed to arrest the ruling of the Court hence the consent is not binding, this cannot be correct because parties at any stage including after delivery of a judgment can enter into a consent.
10. In conclusion the court finds the application merited and hereby allows the same as prayed with the consequence that the petition herein is hereby marked finally settled in terms of the consent dated 15th March, 2023
11. It is so ordered.
Dated and delivered at Nairobi this 3rd day of August, 2023
Abuodha Nelson Jorum
Judge
ELRC