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ELRCDismissedNot stated in the judgment· [2015] KEELRC 524 (KLR)

Alfred Kaloki & 13 others v Sea Front Entertainment Limited [2015] KEELRC 524 (KLR)

Employment and Labour Relations Court
25 September 2015
JRJames Rika
543 words in judgment
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The bottom line

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A Kenyan employment court refused to undo orders holding company directors personally liable for unpaid employee benefits, because the company offered no credible excuse for missing hearings.

What this practically means

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Executive summary

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This first-instance ruling of the Employment and Labour Relations Court at Mombasa, delivered by James Rika, Judge, on 25th September 2015, determined the Respondent Company's application dated 17th March 2015 seeking to reverse the Court's Ruling of 10th March 2015, which had allowed the Directors of the Respondent to be held personally liable for satisfaction of a decree of Kshs. 688,973 issued in the Claimants' favour on 14th April 2014 for terminal benefits and compensation for unfair termination. The application to set aside arose after the underlying application proceeded ex parte: the Respondent, though granted leave to file a Replying Affidavit out of time, never filed it, and on the hearing date its Advocates entrusted the file to a Clerk who neither filed the affidavit nor found an Advocate to hold brief. The Court, agreeing with the decision of Nzioki wa Makau J in Collective Bargaining Advisory Centre v. Ministry for Labour & 4 Others [2015] e-KLR, applied the test that an applicant for setting aside ex parte orders must show why there was no reply, why it failed to attend, and whether it has a reasonable reply. Finding no explanation, no affidavit from the Clerk, and concluding that the Respondent was merely delaying satisfaction of the decree, the Court rejected the application with costs to the Claimants.

Key legal issues

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01

Whether the Ruling of 10th March 2015 should be set aside and the underlying application reheard

Holding

The application to set aside was rejected because the Respondent offered no reasonable explanation for its non-participation and the Court found it was merely delaying satisfaction of the decree.

Reasoning

The Respondent's Counsel left the file to a Clerk who neither filed the Replying Affidavit nor found an Advocate to hold brief. No affidavit of the Clerk was sworn, and the late attempt to file a Replying Affidavit on the hearing morning was unexplained. The Court, agreeing with the decision in Collective Bargaining Advisory Centre v. Ministry for Labour, held that an applicant for setting aside ex parte orders must show a reasonable explanation and a reasonable reply, which the Respondent failed to do.

p. 2

Legal principles established

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  • In considering the setting aside of ex parte orders, the Court must examine the reason why there was no Reply to the Claim; why the Applicant failed to turn up when the orders issued; and whether the Applicant had a reasonable reply.

Court orders

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  1. 1.The Application dated 17th March 2015 is rejected
  2. 2.Costs of the Application to the Claimants

Authorities

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Cases cited (1)

  • Collective Bargaining Advisory Centre v. Ministry for Labour & 4 Others
    [2015] e-KLR
Jurisdiction invoked
Not stated in the 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, "Alfred Kaloki & 13 others v Sea Front Entertainment Limited [2015] KEELRC 524 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/524/eng@2015-09-25

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