Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a Kshs. 3.5 million default judgment, ruling a party shouldn't lose their case because their lawyer missed a hearing date.
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 trial Judge judiciously exercised his discretion in refusing to set aside the ex parte judgment
Key legal issues
#Whether the trial Judge judiciously exercised his discretion in refusing to set aside the ex parte judgment
The Judge misdirected himself; counsel's failure to attend cross-examination was an excusable mistake and the discretion ought to have been exercised in the appellant's favour.
The Court found counsel had two matters before two courts of equal status and overshot his time, a fact conceded by both parties. The appellant applied to set aside the closure the very next day, the respondent's counsel had consented in writing to recalling the claimant, and no prejudice to the respondent was alleged. Locking the appellant out of the seat of justice without hearing its defence offended the right to a fair hearing and the interest of justice warranted intervention.
Whether the trial court acted properly in closing the respondent's case and the appellant's defence suo motu
The closure of the case was improper because the record did not show the appellant was called out and failed to respond, nor that the respondent applied for closure.
The Court examined the record and found no evidence that the appellant or its representative was called out in court without response, and no application by the respondent or his counsel for closure. The trial court therefore moved on its own motion, which the Court held was wrong.
Whether the ex parte judgment breached the appellant's right to a fair hearing under Article 50(1) of the Constitution
The right to a fair trial is at the heart of judicial determination; condemning a party without an opportunity to be heard offends natural justice.
Relying on Onyango v Attorney General and Mbaki v Macharia, the Court reiterated that a decision in breach of the rules of natural justice is not cured by the fact that the same decision would otherwise have been reached, and that the right to be heard is a valued right. There was no reason grave enough to lock the appellant out of its defence and counterclaim.
Legal principles established
#- A court may only interfere with a trial judge's exercise of discretion where the judge misdirected himself on law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or was plainly wrong.
- The sins of counsel should not be visited upon an innocent litigant where the reason for counsel's default is excusable and no prejudice is caused to the other side.
- A court should not close a party's case suo motu, without invitation by the opposing party.
Court orders
#- 1.The appeal is allowed
- 2.The ruling and order dated 21st December, 2015 is set aside
- 3.The appellant's notice of motion dated 6th November, 2015 is allowed in terms of Prayer No. 4
- 4.The respondent's claim shall proceed to hearing on merit before any other judge of ELRC other than Nzioki wa Makau, J.
- 5.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- E.L.R.C. No. 12535 of 2012
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act against a decision of the Employment and Labour Relations Court
Relief refused
#Final determination of the appellant's defence and counterclaim on the merits by this Court
The Court restored the matter for hearing before another ELRC judge rather than determining the defence itself
Costs
We make no order as to costs.
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.
Accordingly, the appeal is allowed. The ruling and order dated 21 st December, 2015 is set aside.
In lieu thereof, we allow the appellant’s notice of motion dated 6th November, 2015 in terms of Prayer No. 4 with consequence that the respondent’s claim shall proceed to hearing on merit before any other judge of ELRC other than Nzioki wa Makau, J.
We make no order as to costs.
Clearly, this is a case where the sins of counsel should not have been visited upon a litigant.
The court moved suo motu and without invitation which in our view was wrong.
…the discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice
Issues in the judgment
#The judgment refers to the ruling under appeal as delivered on 31st December, 2015 in the coram heading but the final orders set aside 'the ruling and order dated 21 st December, 2015', an inconsistent date for the same decision.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kahariri v Ndura & 2 others (Land Case Appeal E042 of 2026) [2026] KEELC 4437 (KLR)[2026] KEELC 4437 (KLR)13 Jul 2026
- Njoroge & 2 others v Nduati & another (Environment and Land Case 7 of 2020) [2026] KEELC 3622 (KLR)[2026] KEELC 3622 (KLR)4 Jun 2026
- Doshі & 2 others v Director of Public Prosecution & 6 others (Environment and Land Petition E017 of 2023) [2025] KEELC 7248 (KLR)[2025] KEELC 7248 (KLR)23 Oct 2025
- Tom Brown Limited & another v County Executive Committee Member in Charge of Planning & 2 others; Attorney General & 4 others (Interested Parties) (Environment and Land Petition E053 of 2022) [2025] KEELC 7228 (KLR)[2025] KEELC 7228 (KLR)23 Oct 2025
- Lumumba v Football Kenya Federation; Zoo Football Ltd (Interested Party) (Employment and Labour Relations Petition E009 of 2023) [2025] KEELRC 1904 (KLR)[2025] KEELRC 1904 (KLR)25 Jun 2025applied
- Byegon v Agricultural Finance Corporation; Chelogoi (Proposed Interested Party) (Enviromental and Land Originating Summons E006 of 2023) [2025] KEELC 2868 (KLR)[2025] KEELC 2868 (KLR)27 Mar 2025applied
- Golden Century Limited v Josef (Environment and Land Miscellaneous Application E224 of 2024) [2025] KEELC 688 (KLR)[2025] KEELC 688 (KLR)20 Feb 2025applied
- Royal Hisham Kenya Limited v Sanlam General Insurance Ltd & another (Civil Appeal E057 of 2023) [2025] KECA 118 (KLR)[2025] KECA 118 (KLR)7 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR)", Case Analysis (2018). Civil Appeal No. 20 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/799/eng@2018-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.