Bernard Kuria & 2 others v Kasturi Limited [2014] KEELRC 499 (KLR)
The bottom line
#A Kenyan employer lost its bid to overturn an employment judgment because it ignored court notices, filed late, and offered no real defence.
What this practically means
#Executive summary
#Key legal issues
#Proper service of hearing notice
Service was properly effected on the Respondent's advocates, Bali-Sharma & Bali-Sharma Advocates, as shown by the stamped hearing notice and affidavit of service; the Respondent also had a second notice from the Registrar
The hearing notice returned to court with a rubberstamp of Bali-Sharma & Bali-Sharma Advocates Nyeri showing receipt on 10th March 2011, with a signature. No affidavit was filed by that firm denying service; the only affidavit denying notice was from the Respondent's Managing Director. In addition, the Registrar's letter of 8th March 2011 gave notice to Waiganjo Wachira & Co. Advocates, so the Respondent had two separate notices.
Alleged breach of rule 21 of the Industrial Court (Procedure) Rules 2010
No breach: the trial court relied on the Claimant's memorandum of claim and granted the prayers sought by the party present; the court could not seek the consent of an absent party
Rule 21 permits determination on pleadings, affidavits, documents and submissions with the consent of the parties. The record showed Mr. Thuku asking to rely on the memorandum of claim in its entirety. In the absence of the Respondent, the court could only rely on the consent of the party in court and could not seek the consent of a party not before it by default. The argument therefore failed.
Meritorious defence raising triable issues
The one-page defence, which merely denies the claims in toto and puts the Claimants to strict proof, is not a meritorious defence
The memorandum of defence contains only a blanket denial and a prayer for dismissal with costs. Citing Kenya Commercial Bank Ltd v Nyatiage, an applicant must indicate a defence to the claim. The Respondent itself acknowledged the weakness of its defence by stating it intended to amend the defence if the judgment were set aside. There was therefore no defence on record worth consideration.
Inordinate and unexplained delay
The delay of about 11 months between judgment (9th November 2012) and the application (3rd September 2013) was inordinate and unexplained
Judgment was delivered on 9th November 2012 and the application filed on 3rd September 2013. The applicant gave no reason for the delay. The court found the delay inordinate and without explanation or justification, a further ground for dismissing the application.
Legal principles established
#- The discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship, but not to assist a person guilty of deliberate conduct intended to obstruct or delay the course of justice
- An applicant seeking to set aside an ex parte judgment must indicate a defence to the claim against him
- A general denial defence that puts the claimant to strict proof is not a meritorious defence raising triable issues
Court orders
#- 1.The Respondent's application dated 3rd September 2013 for setting aside the ex parte judgment is dismissed
- Jurisdiction invoked
- Inherent discretion of the Industrial Court to set aside ex parte judgments; Industrial Court (Procedure) Rules 2010, rule 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Kuria & 2 others v Kasturi Limited [2014] KEELRC 499 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/499/eng@2014-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.