Juja Coffee Exporters Limited v Charles Okungu Odhiambo & 28 others [2019] KECA 962 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a Ksh.16.4 million judgment against Juja Coffee Exporters because the company was never told the case was closing, restoring its right to defend itself.
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 of Appeal should interfere with the learned Judge's discretion in dismissing the appellant's motions to set aside the judgment of 16th June 2017 and for stay of execution
Key legal issues
#Whether the trial court's conduct of the hearing and entry of judgment without notice to the appellant amounted to an irregular judgment warranting interference with the judge's discretion
Yes. The judge misdirected himself in failing to ensure the appellant had notice of the mention date and was served with the respondents' submissions; the manner of trial was irregular and the Court of Appeal was justified in interfering.
The court applied the principles in Pithon Waweru Maina v Thuku Mugiria on setting aside ex-parte judgments and on appellate interference with discretion (Mbogo v Shah). It found that after the appellant's counsel absented himself on 11th October 2016, the judge should have inquired whether counsel was aware of the mention date of 7th November 2016 and whether the appellant had been served with the respondents' submissions. Relying on James Kanyiita Nderitu v Marios Philotas Ghikas, orders made without notice to an affected party are irregular and must be set aside ex debito justitiae. Since the appellant had filed an appearance, defence and participated in trial, it was unjust to shut it out.
Legal principles established
#- Where a judgment is irregularly obtained because a party was not given notice of proceedings or served with the other side's submissions, it must be set aside as a matter of right, without regard to triable issues or delay.
- An appellate court may interfere with a trial judge's discretion where the judge misdirected himself on a matter and as a result arrived at a wrong decision.
- A trial court must ensure that a party who has entered appearance, filed a defence and participated in the trial is given notice of mention dates and served with the opposing party's submissions before closing off its participation.
Court orders
#- 1.The appellant's Notice of Motion dated 25th July 2017 is allowed in terms of Prayer 3
- 2.The judgment delivered on 16th June 2017 is set aside
- 3.The appellant is given an opportunity to present its defence
- 4.Costs of this appeal to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court of Kenya at Mombasa
- ELRC Cause No. 307 of 2015
- Jurisdiction invoked
- First appeal/appellate jurisdiction of the Court of Appeal against discretionary rulings of the ELRC (memorandum of appeal dated 9th May 2018); no specific constitutional or statutory provision is cited in the judgment.
Relief refused
#Determination of the remaining grounds of appeal (grounds 2, 3 and 4 as argued)
Having found the judge's discretion was exercised irregularly, the court found it unnecessary to address the other issues raised.
Costs
Costs of this appeal to the appellant.
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.
The upshot of the above is that we allow this appeal. The appellant's Notice of Motion dated 25 th July 2017 is hereby allowed in terms of Prayer 3. Consequently, the judgment delivered on 16 th June 2017 is hereby set aside and we direct that the appellant be given an opportunity to present its defence. Costs of this appeal to the appellant.
In an irregular default judgment, on the other hand judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance.
We think that the learned judge misdirected himself in not ensuring that the appellant had prior notice of the mention date. He also misdirected himself in not ensuring that the appellant was served with the respondent's submissions.
where an order is made without service upon a person who is affected by it, procedural cockups will not deter the court, ex debito justitiae, from setting aside such an order.
Issues in the judgment
#The judgment contains a duplicated entry in the quotation from Pithon Waweru Maina v Thuku Mugiria - sub-paragraph (e) 'A discretionary power should be exercised judicially and not arbitrarily or idiosyncratically. (Smith v. Middleon (1970 SC 30)' appears twice consecutively.
The date of the ELRC judgment is inconsistently stated in the judgment: the claim was described as 'a judgment rendered on 16th June 2017' while the introductory description of the appeal refers to 'the judgment of the Employment and Labour Relations Court... dated 23rd November, 2017' (23rd November 2017 being the date of the ruling on the setting-aside motions).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juja Coffee Exporters Limited v Charles Okungu Odhiambo & 28 others [2019] KECA 962 (KLR)", Case Analysis (2019). Civil Appeal No. 73 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/962/eng@2019-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.