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ELRCDismissedNot stated in judgment· [2014] KEELRC 499 (KLR)

Bernard Kuria & 2 others v Kasturi Limited [2014] KEELRC 499 (KLR)

Industrial Court (Employment and Labour Relations Court)
9 April 2014
2,110 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Industrial Court (Nyeri) on the Respondent's application dated 3rd September 2013 seeking, among other things, stay of execution and setting aside of the judgment and decree of 9th November 2012, by which Justice B. Ongaya had decided the Claimants' employment claim in their absence after the matter had been heard ex parte on 18th July 2011. The Respondent (through Bipinchandra P. Shah, its Managing Director) argued it was not served with the hearing notice, that no viva voce evidence was taken contrary to rule 21 of the Industrial Court (Procedure) Rules 2010, and that it had a meritorious defence with triable issues. The Claimants opposed, showing a hearing notice stamped and signed by the Respondent's then advocates Bali-Sharma & Bali-Sharma Advocates on 10th March 2011, plus a Registrar's letter of 8th March 2011, and relied on Janepher Asami v Akamba Bus Services on conditional setting aside. Lady Justice Maureen Onyango framed three issues: proper service, the validity of the hearing procedure, and grounds to set aside the ex parte judgment. She found service proper, holding the Respondent had two separate notices. On procedure, she held the trial court could only rely on the consent of the party present. She found the one-page general-denial defence was not meritorious, and noted the Respondent's stated intention to amend its defence. Finally, she found the approximately 11-month delay unexplained. The application was dismissed with costs.

Key legal issues

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01

Proper service of hearing notice

Holding

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

Reasoning

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.

p. 3
02

Alleged breach of rule 21 of the Industrial Court (Procedure) Rules 2010

Holding

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

Reasoning

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.

p. 4
03

Meritorious defence raising triable issues

Holding

The one-page defence, which merely denies the claims in toto and puts the Claimants to strict proof, is not a meritorious defence

Reasoning

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.

p. 4
04

Inordinate and unexplained delay

Holding

The delay of about 11 months between judgment (9th November 2012) and the application (3rd September 2013) was inordinate and unexplained

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Respondent's application dated 3rd September 2013 for setting aside the ex parte judgment is dismissed

Authorities

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Legislation

  • Industrial Court (Procedure) Rules, 2010Rule 21

Cases cited (5)

  • Janepher Asami & 3 others v Akamba Bus Services
    [1998] eKLR
  • Patel v E A Cargo Handling
    [1974] EA 75
  • Shah v Mbogo
    [1967] EA 116
  • Shabir Din v Ram Parkash Anand
    22 EACA 48
  • Kenya Commercial Bank Ltd v Nyatiage & another
    [1990] KLR
Jurisdiction invoked
Inherent discretion of the Industrial Court to set aside ex parte judgments; Industrial Court (Procedure) Rules 2010, rule 21

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, "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.