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ELRCPartially AllowedNot stated in the judgment· [2013] KEELRC 799 (KLR)
Mutune Masua v Designwear [2013] KEELRC 799 (KLR)
Industrial Court (Employment and Labour Relations Court)
24 June 2013
1,102 words in judgment
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·~4 min to read original · ~4 min briefThe bottom line
#Kenya's Employment Court set aside a default judgment because the employer was likely never served, stressing that fair hearings outweigh quick wins.
What this practically means
#Executive summary
#This was a Notice of Motion filed by the Respondent on 20th March 2013 seeking to set aside an ex-parte judgment entered in the Claimant's favour on 21st February 2013, on the ground that the Respondent was never served with summons, the statement of claim, bundles of documents, or any hearing or mention notices, and had no knowledge of the claim until served with a copy of the judgment on 27th February 2013. Temporary stay of execution was granted ex-parte on 21st March 2013, and the application was heard inter-parties on 17th May 2013 with Mr Mungai appearing for the Respondent and the Claimant acting in person. The Respondent relied on the affidavit of Fazleabbas A Tajbhai, who denied being served, denied being the Chief Executive Officer or a Director of the Respondent, and disputed the process server's account of service on the premises. The Claimant, through a replying affidavit, maintained that service was properly effected on Mr Tajbhai and accused the Respondent of seeking to delay the enjoyment of the fruits of judgment. The court held that where there is no proper service the resulting default judgment is irregular and must be set aside ex debito justitiae, and even a regular default judgment may be set aside on such terms as are just, citing Ringera J in the Remko case. Since the conflicting affidavits of service raised doubt and neither deponent was cross-examined, the court weighed the balance of convenience, finding that setting aside merely delays the Claimant while refusal would lock the Respondent out of defending the claim. The application was allowed, the ex-parte judgment and consequential orders were set aside, the Respondent was directed to file its Memorandum of Response within 14 days, and there were no orders for costs.
Key legal issues
#01
Whether the ex-parte judgment should be set aside given conflicting affidavits on service
Holding
The ex-parte judgment and all consequential orders were set aside
Reasoning
The court has wide but judicious discretion to set aside ex-parte judgments. The depositions in Mr Tajbhai's affidavit raised sufficient doubt as to which of the two deponents on service was telling the truth, neither having been cross-examined. The court therefore considered the balance of convenience: setting aside merely delays the Claimant's enjoyment of the judgment, while refusing would lock the Respondent out of defending the claim entirely.
p. 2
Legal principles established
#- Where there is no proper service, the resulting default judgment is irregular and must be set aside ex debito justitiae as a matter of right
- Even a regularly entered default judgment may be set aside upon such terms as are just
Court orders
#- 1.The ex-parte judgment entered against the Respondent on 21st February 2013 and all consequential orders are set aside
- 2.The Respondent to file the Memorandum of Response within 14 days
- 3.No orders for costs
- 4.Parties directed to take a hearing date in Court
- Jurisdiction invoked
- The court's wide discretion to set aside ex-parte judgment (judgment does not cite a specific statutory provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutune Masua v Designwear [2013] KEELRC 799 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/799/eng@2013-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.