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ELRCDismissedNot stated in judgment· [2013] KEELRC 694 (KLR)

Ngao Elijah Mvoyi v Athi River Mining Limited [2013] KEELRC 694 (KLR)

Industrial Court (Industrial Court of Kenya)
19 July 2013
632 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reverse a default employment judgment, holding that a served company that ignores court summons cannot later claim a fair hearing was denied.

What this practically means

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Executive summary

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Athi River Mining Ltd filed a Notice of Motion on 18 June 2013 seeking a stay of execution and setting aside of a judgment and Decree entered on 31 May 2013 in an employment cause before the Industrial Court at Mombasa. The Respondent company argued that it was never served with the Notice of Summons and Memorandum of Claim, that the affidavit of service sworn by Michael Otieno was a fabrication because it lacked the company's physical address and the full name of the Human Resources Manager served, that there were triable issues, and that it would suffer substantial loss if attachment proceeded, relying on the affidavit of Kevin Macharia. The Court rejected each ground. It found service properly effected on Josphat, the Respondent's Human Resources Manager, whose stamp and signature acknowledged the summons; the Respondent did not disown the stamp. The Deputy Registrar had also written to the Respondent at its acknowledged postal address, and a hearing notice was served and acknowledged. The Court held that a party served and notified who ignores process cannot later assert triable issues. On substantial loss, the Court held that loss flowing from a judgment of the Court cannot qualify as loss necessitating stay or setting aside, and noted the Respondent failed to invoke the Order 42 rule 6 principles. The application was dismissed on 19 July 2013 with costs assessed at Kshs 5,000 to the Claimant.

Key legal issues

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01

Service of summons and claim

Holding

Service was properly effected and evidenced by affidavit; the Respondent did not deny the officer served or disown the stamp of acknowledgment

Reasoning

The affidavit of service sworn by Michael Otieno indicated that Josphat, the Respondent's Human Resources Manager, was served and acknowledged the summons by stamp and signature. The Respondent neither denied the existence of such officer nor disowned the stamp. It also received court correspondence at its acknowledged postal address and was served with hearing notice. The allegation of fabrication was rejected.

p. 1
02

Triable issues after ex parte judgment

Holding

A party served with summons and hearing notice who ignores them cannot later claim triable issues

Reasoning

Having been served with the Notice of Summons, Memorandum of Claim and hearing notice, the Respondent elected not to attend. The Court held that such a party cannot belatedly urge triable issues as a ground for setting aside the judgment; deliberate disregard of process disentitles it from that relief.

p. 2
03

Substantial loss for stay of execution

Holding

Loss occasioned by a judgment of the Court is not the kind of substantial loss that supports a stay or setting aside

Reasoning

The Court found that any loss the Respondent would incur flows from a lawful judicial decision and thus cannot amount to substantial loss. It further noted the Respondent failed to invoke the established principles governing stay applications under Order 42 rule 6 of the Civil Procedure Rules.

p. 2

Legal principles established

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  • Loss flowing from a lawful judgment of the Court does not constitute substantial loss justifying a stay of execution or setting aside

Court orders

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  1. 1.Dismissal of the Notice of Motion filed on 18 June 2013
  2. 2.Costs assessed at Kshs 5,000 awarded to the Claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
Jurisdiction invoked
Original employment and labour relations jurisdiction; application under Order 42 rule 6 of the Civil Procedure Rules in respect of a decree of the Court

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, "Ngao Elijah Mvoyi v Athi River Mining Limited [2013] KEELRC 694 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/694/eng@2013-07-19

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