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ELRCDismissedNot stated (previously Nai No. 1099/2011)· [2014] KEELRC 779 (KLR)

Maurine Achieng v Satish K. Shah (Cause 19'A' of 2013) [2014] KEELRC 779 (KLR)

Industrial Court of Kenya
30 January 2014
HWHellen Wasilwa
532 words in judgment
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The bottom line

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Kenya's Industrial Court refused to set aside a judgment because the applicants delayed deliberately and their proposed defence raised no real triable issues.

What this practically means

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Executive summary

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This was a ruling of the Industrial Court of Kenya at Kisumu on an application dated 27.6.2013 by the respondents seeking leave to file a defence out of time and to set aside the judgment delivered on 22.2.2013. The applicants, through an affidavit sworn by Jaideep Shah on 23.6.2013, contended that their counsel failed to file a defence, that they were never informed of the hearing, and that they had a good defence deserving consideration, urging that they should not be condemned unheard. They averred they had instructed Gumbo & Associates upon service of Summons but received no correspondence until the judgment was delivered. The claimant opposed the application by a Replying Affidavit sworn on 23.9.2013, arguing it was intended to delay the case. She pointed out that the Court's judgment had already granted the respondents time to file a response by 6.12.13, which they ignored, and that the application was filed nearly four months after service of the judgment and only after execution processes commenced. The Court, per Hellen Wasilwa J, held that although it enjoyed a wide discretion, it could not aid litigants bent on deliberately delaying or obstructing justice. The applicants had ignored the Court's earlier indulgence, failed to pay costs, and only stirred once execution loomed. The draft defence was found to be a mere denial raising no triable issues. Relying on the principles in Patel v E.A. Cargo Handling Services and Shah v Mbogo, the Court dismissed the application with costs. Appearances recorded Kitiwa for the respondent/applicant as absent.

Key legal issues

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Whether the Court should exercise its discretion to set aside the judgment and allow the respondents to file a defence

Holding

The application was dismissed; the respondents' inaction and deliberate delay disentitled them to the discretionary relief.

Reasoning

The Court has a wide discretion but will not assist parties bent on delaying or obstructing justice. The respondents had already been given an opportunity to file a response by a set date and failed. They only moved the Court four months after receiving the judgment, once execution commenced. The proposed defence was a mere denial raising no triable issues.

p. 2

Legal principles established

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  • The Court's wide discretion to set aside judgment will not be exercised in favour of litigants who deliberately delay or obstruct justice.
  • A draft defence that is a mere denial raising no triable issues does not merit setting aside a judgment.

Court orders

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  1. 1.The respondents' application dated 27.6.13 dismissed
  2. 2.Costs of the application awarded to the claimant

Authorities

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Cases cited (2)

  • Patel V.E.A. Cargo Handling Services
    (1974) EA 75
  • Shah Vs Mbogo
    (1967) EA 116
Jurisdiction invoked
Discretion of the Industrial Court to set aside judgment and grant leave to file defence (statutory employment jurisdiction; no specific provision quoted)

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, "Maurine Achieng v Satish K. Shah (Cause 19'A' of 2013) [2014] KEELRC 779 (KLR)", Case Analysis (2014). Not stated (previously Nai No. 1099/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/779/eng@2014-01-30

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