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ELRCDismissedNot stated in the judgment excerpt· [2014] KEELRC 978 (KLR)

Abel Marcel Okoth Okello v Kenya Medical Research Institute KEMRI) [2014] KEELRC 978 (KLR)

Employment and Labour Relations Court of Kenya
31 March 2014
MOMaureen Onyango
2,087 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to undo a default judgment because the employer's lawyer carelessly left court, and the employer had no fair reason for firing the worker.

What this practically means

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Executive summary

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The Respondent moved the court by Notice of Motion dated 19th July 2013 seeking to set aside and vacate the ex parte judgment entered on 19th March 2013, unconditional leave to defend the suit, and interim stay of execution, on grounds that its counsel attended court on the hearing date of 7th November 2012 but left after about 30 minutes upon finding the matter absent from the cause list, and that the Claimant then proceeded with the hearing ex parte without service of a mention notice. The Claimant opposed, swearing that he and his advocate were in court from 9.00 am, that the case was called out and heard at about 11.00 am after confirmation that the hearing date had been taken inter parties, and that the Respondent had no meritorious defence. The court applied the principles in Shah v Mbogo, that the discretion to set aside ex parte judgments exists to relieve against accident, inadvertence or excusable mistake but not to assist deliberate obstruction or delay. It found the Respondent's counsel reckless and apparently deliberate in walking away without inquiring of the court clerk or the Claimant's counsel where a consented hearing date was not listed; there was thus no excusable mistake. On the merits, the court found the defence spurious: the termination letter disclosed no reason for termination and no hearing was given, offending Section 41 of the Employment Act, so setting aside the judgment would return the parties to the same conclusion. The application was dismissed with costs.

Key legal issues

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01

Whether counsel's failure to await the hearing constituted excusable mistake

Holding

No - the conduct was reckless and deliberate, disentitling the Respondent to the court's discretion

Reasoning

The hearing date had been taken by consent in court. Counsel admitted attending and waiting only about 30 minutes before leaving on the basis that the case was not listed. The court held a diligent counsel would have checked with the court clerk, the cause list and the other counsel. Her conduct gave the impression of deliberately walking away to delay the hearing, so no accident, inadvertence or excusable mistake existed.

p. 3
02

Whether the Respondent had a meritorious defence justifying setting aside

Holding

No - the defence was found spurious; the termination letter disclosed no reason and no hearing, offending Section 41 of the Employment Act

Reasoning

The court examined the statement of defence and the letter of termination. Most paragraphs of the Memorandum of Claim were admitted or only partially denied. The termination letter on its face neither gave a reason for termination nor complied with Section 41 of the Employment Act or the contract. Setting aside the judgment would bring the parties full circle to the same conclusion.

p. 4

Legal principles established

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  • The discretion to set aside an ex parte judgment is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the course of justice
  • A counsel whose consent date is not on the cause list must make inquiries of the court clerk and the other counsel before leaving; leaving after 30 minutes is reckless conduct whose consequences are not excusable
  • An ex parte judgment may also be set aside where the defendant demonstrates a good defence on the merits
  • A termination letter without a reason for termination and without a hearing does not comply with Section 41 of the Employment Act, so a defence premised on such a letter is not a valid defence

Court orders

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  1. 1.The Respondent's Notice of Motion dated 19th July 2013 seeking to set aside the ex parte judgment and for leave to defend is dismissed
  2. 2.Costs of the application to the Claimant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 10 Rule 11
  • Employment ActSection 41

Cases cited (7)

  • Shah vs Mbogo
    [1967] E.A 116
  • Byaruhanga and Another vs The Uganda Land Commission
    [2012] UGHC 162
  • Pharmaceutical Manufacturing Co. vs Novelty Manufacturing Limited
    [2001] 2 E.A 521
  • Waweru v Ndiga Caca
    [1983] KLR 236
  • Trust Bank Ltd vs Portway Stores Ltd & Others
    [2006] eKLR
  • Joseph Njugua Muniu vs Medicino Giovanni Caca
    Nai No. 216 of 1997
  • Patel vs Cargo Handling Services Ltd
    1974 EA 75
Jurisdiction invoked
Inherent discretion under Order 10 Rule 11 of the Civil Procedure Rules, 2010 to set aside ex parte judgment

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, "Abel Marcel Okoth Okello v Kenya Medical Research Institute KEMRI) [2014] KEELRC 978 (KLR)", Case Analysis (2014). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/978/eng@2014-03-31

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