Julius Wafula Chebi v Gibon Akifuma & Egap Solutions Limited (Cause 1013 of 2013) [2014] KEELRC 1388 (KLR)
The bottom line
#Kenya's Industrial Court set aside a default judgment caused by a lawyer's diary error, but ordered the employer to pay costs quickly or lose the reprieve.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel's inadvertent mistake in diarising the hearing date is sufficient reason to set aside an ex parte judgment
Yes; despite extreme negligence by the advocate, the discretion is exercised to allow the matter to be heard inter partes
The court applied the established principles that the discretion to set aside regular default judgments is wide, intended to avoid injustice from accident, inadvertence or excusable mistake, and is only withheld where a party deliberately sought to obstruct or delay justice. Although the advocate's lapses amounted to extreme negligence, the defence raised triable issues and the claimant could be compensated by thrown away costs.
Whether the Respondent's defence raised triable issues
Yes; the defence that the claimant was an independent contractor not entitled to redundancy dues raised bona fide triable issues
The court examined the Memorandum of Reply dated 22nd July 2013, in which the Respondent contended that the claimant was engaged as an independent contractor and therefore not entitled to redundancy dues. Following Baraka Apparel EPZ (K) Ltd v Rose Ojwang, the court was satisfied that the defence raised triable issues and that the Respondents would be prejudiced if denied the chance to present it.
Whether the claimant was entitled to an order for deposit of the decretal sum
No; such an order is conceptually impossible where the judgment itself is set aside
The claimant's counsel argued that the Respondent had not offered to deposit the decretal sum. The court held, respectfully disagreeing with counsel, that where the application is to set aside the judgment itself, setting it aside extinguishes the decree, so there is no decretal sum capable of being deposited. However, thrown away costs were awarded.
Legal principles established
#- A regular ex parte judgment may be set aside in the court's discretion on such terms as are just, to avoid injustice from inadvertence or excusable mistake
- An ex parte judgment should only be set aside where the defence raises bona fide triable issues
- A party causing the setting aside of a judgment must bear the thrown away costs of the innocent party
Court orders
#- 1.The Respondent's application is allowed
- 2.The judgment entered against the Respondents on 14th March 2013 (sic, 2014) is set aside together with consequential orders if any
- 3.The Respondent is granted leave to recall and cross examine the claimant
- 4.The Respondents to pay thrown away costs of Kshs.20,000/= within 30 days from the date of the ruling failing which the orders will automatically lapse
- 5.The Advocates for the Respondent to apologize in writing to the court and to Justice Maureen Odero, with copies to the Chief Justice and the Chairman of the Law Society of Kenya, within 14 days
- Jurisdiction invoked
- Section 16 of the Industrial Court Act and Rules 22, 27(1) and 32 of the Industrial Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Wafula Chebi v Gibon Akifuma & Egap Solutions Limited (Cause 1013 of 2013) [2014] KEELRC 1388 (KLR)", Case Analysis (2014). Cause No 1013 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1388/eng@2014-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.