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ELRCPartially AllowedNot stated in judgment (Industrial Cause; ex-parte judgment entered 29th January 2013)· [2013] KEELRC 326 (KLR)

JORAM GAKUMO V THIKA COFFEE MILLS LIMITED [2013] KEELRC 326 (KLR)

Industrial Court (Employment and Labour Relations Court)
24 April 2013
MOMaureen Onyango
1,740 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Thika Coffee Mills Ltd, the Respondent, moved the Industrial Court by Notice of Motion dated 19th February 2013 seeking to set aside an ex-parte judgment entered against it in an unfair termination claim by Joram Gakumo, the Claimant, together with consequential orders and a stay of execution. The application was supported by the affidavit of the Respondent's counsel, who admitted he failed to diarize the hearing date. The Claimant opposed, arguing that failure to tax costs is not a ground for setting aside judgment and that the defence raised no triable issues. The court framed two issues: entitlement to setting aside of the ex-parte judgment and entitlement to stay of execution. Adopting the test in the Aberdare Cheese case, the court accepted that counsel's failure to diarize was an excusable mistake for which the client should not be punished, but held the Respondent had no reasonable defence: the Memorandum of Defence was a bare denial, and the defence alleged a practice of gross misconduct inconsistent with the dismissal letter, which cited a single incident of insubordination and did not comply with Sections 41 and 45 of the Employment Act. On stay of execution, the court agreed execution was premature under Section 94 of the Civil Procedure Act, but noted the Respondent's delay in seeking relief. The application to set aside judgment was dismissed; a limited stay of execution was granted pending taxation of the Claimant's Party and Party Bill of Costs; the Respondent was ordered to pay the auctioneer's proclamation costs and the Claimant's costs of the application.

Key legal issues

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01

Whether the ex-parte judgment should be set aside on the ground of counsel's inadvertent failure to diarize the hearing date

Holding

The mistake was excusable, but setting aside was refused because the defence raised no triable issues

Reasoning

The court applied the test in the Aberdare Cheese case: where a party has not deliberately obstructed justice, the court considers setting aside to avoid injustice, but must also consider whether a reasonable defence raising triable issues exists. The Memorandum of Defence was a bare denial; it could not verify the very grounds and procedure for termination, so the Respondent had no defence to the claim.

p. 4
02

Whether the Respondent was entitled to stay of execution

Holding

A limited stay of execution was granted until the Claimant's Party and Party Bill of Costs is heard and determined

Reasoning

The court agreed execution proceedings were premature and contravened Section 94 of the Civil Procedure Act, since no leave to execute before taxation had been obtained. However, the Respondent delayed unreasonably after being served with the Notice of Taxation and Notice of Entry of Judgment, only acting after proclamation of its goods, so no broader stay was justified.

p. 5
03

Whether the Respondent had a reasonable defence to the unfair termination claim

Holding

No - the defence was a bare denial inconsistent with the dismissal letter

Reasoning

The defence alleged a practice of gross misconduct (disrespect, disobeying instructions, disregarding authority), but the dismissal letter of 20th January 2012 referred to a single incident of disrespect. The defence did not plead compliance with the hearing requirements of Section 41 of the Employment Act, and the trial judge had already found the dismissal procedurally unfair, a finding the court agreed with.

p. 3

Legal principles established

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  • In deciding whether to set aside an ex-parte judgment the court considers whether the party deliberately sought to obstruct or delay justice, and if not, whether there is a reasonable defence raising triable issues
  • A litigant should not be punished for an excusable mistake of counsel
  • An employer must give an employee a hearing before summary dismissal and prove valid reason and fair procedure under Sections 41 and 45 of the Employment Act

Court orders

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  1. 1.The Respondent's application for setting aside the judgment entered on 26th October 2012 together with all consequential orders is dismissed
  2. 2.There will be stay of execution of decree until the Claimant's Party and Party Bill of Costs is heard and determined
  3. 3.The Respondent shall pay the auctioneers costs for proclamation in accordance with scale
  4. 4.The Respondent shall pay the Claimant's costs of this application
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Industrial Court; no constitutional or statutory provision expressly invoked as the source of jurisdiction 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, "JORAM GAKUMO V THIKA COFFEE MILLS LIMITED [2013] KEELRC 326 (KLR)", Case Analysis (2013). Not stated in judgment (Industrial Cause; ex-parte judgment entered 29th January 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/326/eng@2013-04-24

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