Nature Pharmacy Ltd & another v Gichuhi
The bottom line
#Kenya's Court of Appeal confirmed that ignoring your lawsuit until judgment is entered can cost you the case, even if you blame your lawyer.
What this practically means
#Executive summary
#Key legal issues
#Exercise of discretion in setting aside ex parte judgments
The trial court's discretion was properly exercised; the appellate court discerned no misdirection and the ruling was legally sound.
Discretion must be based on sound principles, not sentiment or sympathy. The Mbogo v Shah standard applies: interference only where the trial court misdirected itself on law, misapprehended facts, took into account or failed to take into account relevant considerations, or was plainly wrong. The ruling showed none of these defects.
Mistakes of counsel
Mistakes of counsel are not automatically excusable; parties must show interest in and follow up their cases, and the negligent party's remedy is against its advocates.
While courts readily excuse counsel's mistakes where it affords just and expeditious disposal, the discretion is not automatic. Counsel owes duties to the court and the other side. The appellants had advocates on record, gave no explanation for the failure to file a defence, and made no follow-up; Omwoyo v African Highlands confirms the remedy is professional negligence against the advocates.
Fair hearing under Article 50
Article 50 did not aid the appellants; due process was followed as they were served and their counsel was in court on the day of formal proof.
The right to a fair trial is cardinal, but fairness must apply to both parties. The record showed the appellants were served with pleadings, had counsel on record, and their counsel was present at formal proof. They did nothing until after judgment and service of the bill of costs, so they cannot claim they were not accorded an opportunity to be heard.
Article 159(2)(d) and procedural technicalities
Article 159(2)(d) was never meant to oust litigants' obligation to comply with procedural imperatives; failure to file a defence cannot be cured by it.
Adopting the Supreme Court's observation in Raila Odinga v IEBC, the provision means courts should not pay undue attention to procedure at the expense of substantive justice, but it does not excuse non-compliance. Salat v IEBC reinforces that rules and timelines must be honoured and courts must not provide succour to parties who exhibit scant respect for them.
Joinder of the 2nd appellant
The 2nd appellant was properly joined; any party linked to the transaction may be joined, and misjoinder does not defeat a suit under Order 1 rule 9.
Order 1 rule 3 permits joinder of all persons against whom relief is alleged arising from the same transaction. The respondent's case was that the 2nd appellant was the owner/director of the 1st appellant and the only person known to him at employment. If disputing liability, he should have taken steps to exonerate himself; the prayer was not available at that stage and no prejudice was occasioned.
Right to be heard versus expeditious disposal
The right to be heard cannot be lauded at the expense of the right to expeditious determination; laxity leads to delay and prejudice.
Proportionality is required; courts' inherent jurisdiction to dismiss suits must protect the integrity of the process from abuse amounting to injustice. Rules and timelines serve certainty and case management. Weighing the appellants' laxity against the manner of the respondent's termination, the respondent would ideally suffer prejudice were the orders sought granted.
Legal principles established
#- The Court of Appeal interferes with a trial court's exercise of discretion only on established grounds: misdirection on law, misapprehension of facts, wrong considerations taken or omitted, or a plainly wrong decision.
- Article 159(2)(d) does not oust the obligation of litigants to comply with procedural imperatives; parties cannot hide behind it to excuse failure to file a defence or follow up their cases.
- A party who fails to follow up their case after instructing counsel cannot hide behind the mantra that mistakes of counsel should not be visited on them; the remedy lies against the negligent advocates.
- An application to set aside an ex parte judgment must annex a draft defence to enable the trial court to exercise its discretion properly.
- Any party linked to the act or transaction giving rise to the suit may be joined as a defendant under Order 1 rule 3 of the Civil Procedure Rules.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The respondent shall have the costs of the appeal
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC Cause No. 2007 of 2013
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the ELRC (Article 164(1)(a) framework; judgment does not state the provision expressly)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Engineering Workers Union v Engineering Supplies Limited (Cause E006 of 2024) [2025] KEELRC 755 (KLR)[2025] KEELRC 755 (KLR)6 Mar 2025
- Makini Housing Co-operative Society Limited & 2 others v Mwangi & 4 others (Environment and Land Appeal E024 of 2023) [2025] KEELC 701 (KLR)[2025] KEELC 701 (KLR)20 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Nature Pharmacy Ltd & another v Gichuhi", Case Analysis (2022). Civil Appeal 245 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/827/eng@2022-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.