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ELRCDismissedCause No 25 of 2013· [2014] KEELRC 559 (KLR)

Nicholas Otinyu Muruka v Equity Bank Limited [2014] KEELRC 559 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
1 April 2014
MMM. Mbaru
1,228 words in judgment
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The bottom line

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A Kenyan court refused to undo a default judgment because the respondent couldn't prove a defence was actually filed, and dismissed misconduct claims against the claimant's advocate.

What this practically means

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Executive summary

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The respondent in an employment claim brought a Notice of Motion dated 13th November 2013 and filed on 21st November 2013, supported by the affidavit of Joyce Munene, seeking a declaration that claimant's advocate Wesonga Geoffrey Eric had no practising certificate when filing suit, that all orders be set aside as a nullity, that pleadings drawn by the advocate be expunged, that the advocate and Daystar Auctioneers refund Kshs. 1,108,208.00 paid in settlement, and that disciplinary action be taken against them. The respondent argued that a defence filed on 8th February 2013 was on record yet default judgment was entered on 24th June 2013, followed by execution under warrants for Kshs. 894,938.00 which compelled the payment. The claimant replied through the advocate's affidavit, further and supplementary affidavits, contending the respondent never filed a defence, that the advocate held a valid 2013 practising certificate, and that the application was an abuse of process. M. Mbaru J held that the alleged defence and filing receipts were missing and remained contested, with no evidence supporting them, and that unconfirmed claims cannot justify setting aside the orders. On the practising certificate, the court found evidence that the advocate held one for 2013 and observed the respondent should have verified through the Law Society of Kenya before alleging misconduct. The claim against the auctioneers failed as they were not joined. The application was dismissed with costs to the claimant.

Key legal issues

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01

Whether a defence existed on the court file at the time default judgment was entered

Holding

The court found no proof of filing; the defence attached was contested and the receipts missing

Reasoning

The court noted that filed documents are stamped and receipts issued, and that where documents are misfiled, the accepted practice is for a party to file an affidavit or obtain a copy from the served party. The respondent produced neither the stamped copy confirmation nor the filing receipts, so the alleged defence remained unproved and the default judgment stood.

p. 2
02

Whether the claimant's advocate lacked a practising certificate for 2013, rendering proceedings a nullity

Holding

The court found evidence the advocate held a valid 2013 practising certificate

Reasoning

The court held the respondent ought to have verified the practising status through the Law Society of Kenya before alleging misconduct, and that instigating such complaints against a fellow member without verification would itself amount to professional misconduct. The expungement prayer therefore failed.

p. 2

Legal principles established

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  • A party seeking to set aside orders on the basis of a defence allegedly filed must produce the stamped copy or filing receipts; casual, unconfirmed claims will not suffice
  • The Law Society of Kenya is the proper avenue for confirming whether an advocate holds a practising certificate

Court orders

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  1. 1.The application dated 13th November 2013 and filed on 21st November 2013 is dismissed
  2. 2.Costs awarded to the claimant

Authorities

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Legislation

  • Advocates Actsections 9, 21, 23, 24, 31, 33, 34, 40, 56
  • Labour Institutions Actsections 12, 27
  • Industrial Court Procedure RulesRules 16, 27, 31
  • Constitution of Kenyaarticle 159
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure Actsections 1A, 1B
Jurisdiction invoked
Sections 9, 21, 23, 24, 31, 33, 34, 40 and 56 of the Advocates Act; sections 12 and 27 of the Labour Institutions Act; Rules 16, 27 and 31 of the Industrial Court Procedure Rules; article 159 of the Constitution; Order 42 rule 6 CPR; sections 1A and 1B CPA

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, "Nicholas Otinyu Muruka v Equity Bank Limited [2014] KEELRC 559 (KLR)", Case Analysis (2014). Cause No 25 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/559/eng@2014-04-01

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