Robert Bosire Nyagaka v Sameer Agriculture and Livestock (K) Limited [2014] KEELRC 128 (KLR)
The bottom line
#A Kenyan employment court refused to undo an ex parte judgment because the employer waited seven months, was properly served, and tried swapping lawyers after losing.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment should be set aside for non-attendance
Application to set aside dismissed; service was proper on three occasions, the defence on record was considered in the judgment, and no satisfactory explanation or affidavit from Sang Langat explained the non-attendance.
The record showed hearing notices served on the Respondent's advocate for 22nd January, 27th March and 20th June 2013, with affidavits of service filed. The matter proceeded ex parte under Rule 22(b). The court nonetheless considered the Respondent's defence on the merits. No affidavit from the defaulting advocate explained the absences, and the application came over seven months late.
Whether the late substitution of advocates should be permitted
Refused; the court viewed the substitution as a tactic to shield the negligent former advocate and the defaulting party.
Sang Langat remained on record throughout the delay. The new firm sought to come on record only after judgment, without any affidavit from the former advocate. The court found the substitution ingenuous and designed to shield the defaulting party from glaring negligence that occasioned unnecessary delay in disposing of the matter.
Whether the underlying judgment was properly entered despite the ex parte proceedings
Yes; the court had considered the Respondent's memorandum of response and annexures and decided the claim on its merits.
Because the Respondent had filed a statement of response and documentary evidence, the court considered the defence before entering judgment. It found the claimant was not on a short-term contract at termination, the contract having lapsed on 30th June 2011, and that termination was for unsatisfactory performance rather than effluxion of time.
Legal principles established
#- Indefinite and unexplained absence by a party justifies the Court proceeding in that party's absence.
- Proper service of a hearing notice permits the matter to proceed ex parte under Rule 22(b) of the Industrial Court (Procedure) Rules, 2010.
Court orders
#- 1.Application dismissed with costs to the Claimant/Respondent
- 2.Leave to come on record denied by implication; the exparte judgment and decree of 19th September 2013 stand and Claimant entitled to enjoy the fruits of the judgment
- Jurisdiction invoked
- Industrial Court (Procedure) Rules, 2010, Rule 22(b)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Bosire Nyagaka v Sameer Agriculture and Livestock (K) Limited [2014] KEELRC 128 (KLR)", Case Analysis (2014). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/128/eng@2014-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.