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ELRCPartially AllowedCause No 1013 of 2013· [2014] KEELRC 1388 (KLR)

Julius Wafula Chebi v Gibon Akifuma & Egap Solutions Limited (Cause 1013 of 2013) [2014] KEELRC 1388 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
16 October 2014
2,357 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Respondent filed a Notice of Motion dated 8th April 2014 under Section 16 of the Industrial Court Act and Rules 22, 27(1) and 32 of the Industrial Court (Procedure) Rules seeking to re-open the case, set aside the ex parte judgment delivered on 14th March 2014, and stay execution. The application was grounded on counsel's inadvertent misdiarisation of the hearing date as 28th February 2014 instead of 28th January 2014, leading to non-attendance and an ex parte hearing. The Claimant, through Betty Rashid Advocates, opposed the application, arguing that counsel's negligence should not prejudice the claimant, that litigation must end, and that no decretal sum deposit had been offered. The court held that although the principles for setting aside ex parte judgments are not expressly provided in the Industrial Court Act or its Rules, the Civil Procedure Act framework and case law apply by analogy. Applying Remco Limited v Mistry Jadva Parbat, Patel v E.A. Cargo Handling Services, Shah v Mbogo, Phillip Chemwolo v Augustine Kubende and Baraka Apparel EPZ, the court found the advocate's lapses amounted to extreme negligence but that the discretion favours hearing parties on the merits where a bona fide defence raising triable issues exists - here, that the claimant was an independent contractor not entitled to redundancy dues. The application was allowed: the judgment of 14th March 2014 was set aside with consequential orders, the Respondent was granted leave to recall and cross-examine the claimant, and the Respondents were ordered to pay thrown away costs of Kshs.20,000/= within 30 days failing which the orders lapse. The court also condemned the Respondent's advocates for referring to the presiding judge by the wrong name and directed a written apology to the court and to Justice Maureen Odero with copies to the Chief Justice and the Law Society of Kenya.

Key legal issues

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01

Whether counsel's inadvertent mistake in diarising the hearing date is sufficient reason to set aside an ex parte judgment

Holding

Yes; despite extreme negligence by the advocate, the discretion is exercised to allow the matter to be heard inter partes

Reasoning

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.

p. 4
02

Whether the Respondent's defence raised triable issues

Holding

Yes; the defence that the claimant was an independent contractor not entitled to redundancy dues raised bona fide triable issues

Reasoning

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.

p. 5
03

Whether the claimant was entitled to an order for deposit of the decretal sum

Holding

No; such an order is conceptually impossible where the judgment itself is set aside

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Respondent's application is allowed
  2. 2.The judgment entered against the Respondents on 14th March 2013 (sic, 2014) is set aside together with consequential orders if any
  3. 3.The Respondent is granted leave to recall and cross examine the claimant
  4. 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. 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

Authorities

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Legislation

  • Industrial Court ActSection 16
  • Industrial Court (Procedure) RulesRules 22, 27(1) and 32
  • Civil Procedure ActOrder 12 Rule 7
  • Civil Procedure RulesOrder IXA Rule 10

Cases cited (23)

  • Yamko Yadpaz Industries Limited v Kalka Flowers Limited
    (2013) eKLR
  • Didovsky Igor & 11 others v International Bulk Carrier Spa & 2 others
    (2013) eKLR
  • Maina v Mugiria
    (1983) KLR 78
  • Patel v E.A Cargo Handling Services
    (1974) EA 75
  • Jesse Kimani v McConnel
    (1966) EA 547
  • Shah v Mbogo
    (1967) EA 116
  • CMC Holdings Ltd v Nzioki
    (2004) eKLR
  • Adolf Gitonga v Mwangi Thiongo
    (1982-1988) 1 KAR 1027
  • K-Rep Bank Limited v Inclusive Agencies Msa Ltd & 2 others
    (2013) eKLR
  • Baraka Apparel EPZ (K) Ltd v Rose Mbula Ojwang T/A Faida 2002 Caterers
    (2007) eKLR
  • CFC Stanbic Limited v John Maina Githaiga & another
    (2013) eKLR
  • Ahmed v Commission of Customs & Excise
    (2000) 2 EA 93
  • Housing Finance Company of Kenya v Richard Ndere Johnson
    (2010) eKLR
  • Chemwolo & another v Kubende
    (1986) KLR 492
  • Lee G. Muthoga v Habib Zurich Finance (K) Ltd & another
    Civil Application No. Nai 236 of 2009
  • Julius Kamau Kithaka v Waruguru Kithaka Nyaga & Another & 2 others
    (2013) eKLR
  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA 48
  • Kanji Naran v Vemji
    (1954) 21 EACA 20
  • Remco Limited v Mistry Jadva Parbat & Co. Ltd & 2 others
    Milimani HCCC No. 171 of 2001
  • Phillip Chemwolo & Another v Augustine Kubende
    (1982-88) 1 KAR 1036
  • Maina v Muriuki
    (1984) KLR 407
  • Sebei District Administration v S Gasyali
    (1968) EA 200
  • Pithon Waweru Maina v Thuku Mugiria
    (1982-88) 1 KAR 171
Jurisdiction invoked
Section 16 of the Industrial Court Act and Rules 22, 27(1) and 32 of the Industrial Court (Procedure) Rules

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, "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.