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ELRCDismissedNot stated in the judgment (Milimani ELC No. 63 of 2011 referred to only as another matter)· [2013] KEELRC 42 (KLR)

Kenya Scientific Research International Technical & Allied Institutions Workers Union v Aqua Technologies Ltd & 2 others [2013] KEELRC 42 (KLR)

Employment and Labour Relations Court
20 December 2013
DMD. K. Njagi Marete
649 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to set aside a default judgment because the applicant's lawyer skipped the hearing after being served, so the applicants must pay the decree plus costs.

What this practically means

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Executive summary

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This was a Notice of Motion dated 18th February, 2013 by the Respondent/Applicant in an employment matter before the Employment and Labour Relations Court, seeking certification as urgent, a temporary order of stay of execution of the decree, setting aside of the ex-parte judgment delivered on 16th November, 2012 and the decree issued on 19th December, 2012, an order that the claimant serve the statement of claim, and that the respondents be allowed to file a defence. The applicants argued that the statement of claim was never served, that the claimant unilaterally procured an ex-parte hearing date, that the hearing notice was served too late on 5th November, 2012, and that counsel's inadvertence in not diarising the matter should not be visited on the applicants. The Claimant/Respondent, in a replying affidavit, deponed that the applicants' advocate had filed a notice of appearance, was served with the hearing date, never raised any issue of non-service, and simply failed to attend the hearing or raise any defence up to the date of judgment, the matter having been literally abandoned. The court agreed with the claimant, holding that the applicants' grounds were untruthful, baseless and unsustainable, and that counsel could not be heard to ask the court to reward him of his own mischief. The application was dismissed with costs to the Claimant/Respondent. Judgment was dated, delivered and signed on 20th December, 2013 by D. K. Njagi Marete, Judge.

Key legal issues

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Whether service of the hearing notice was proper and whether lack of appearance justified setting aside the ex-parte judgment

Holding

The application was dismissed; the applicants were served with the hearing notice on 5th November 2012, received it under protest, and the claim was abandoned by their advocate who filed a notice of appearance without raising the issue of lack of service

Reasoning

The court found the applicants' grounds untruthful. The respondents' advocate had appeared in the matter, never complained of non-service, was served with the hearing date, and simply failed to attend or raise any defence up to judgment. The court held that counsel's omission should not be rewarded by setting aside the judgment and allowing a defence at that late stage, the matter having been literally abandoned.

p. 2

Legal principles established

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  • A party cannot benefit from its own negligence or mischief where it was served with a hearing notice and chose not to attend

Court orders

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  1. 1.The application is dismissed
Jurisdiction invoked
Inherent jurisdiction of the court to set aside ex-parte judgments in the interest of justice (not expressly cited in the judgment)

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, "Kenya Scientific Research International Technical & Allied Institutions Workers Union v Aqua Technologies Ltd & 2 others [2013] KEELRC 42 (KLR)", Case Analysis (2013). Not stated in the judgment (Milimani ELC No. 63 of 2011 referred to only as another matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/42/eng@2013-12-20

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