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ELRCDismissedCause No. 2430 of 2012 (Notice of Motion filed 16th December 2014)· [2015] KEELRC 663 (KLR)

Kenya Union of Domestic, Hotels, Educational Insitutions, Hospitals and Allied Workers (KUDHEIHA) v Sasini Coffee House Limited [2015] KEELRC 663 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
31 July 2015
MNMathews Nderi Nduma
580 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent/Applicant moved the Industrial Court at Nairobi by Notice of Motion filed on 16th December 2014 seeking to set aside the court's judgment of 7th November 2014, delivered in default of appearance and defence, together with any consequential decree and order. The application was supported by the affidavit of Daniel Sitati Sifuna, who contended that the Respondent's advocates received an invitation notice dated 10th January 2014 containing conflicting information as to whether the date-fixing registry was Nairobi or Kisumu, and that the Respondent only learned on 25th September 2014 that the matter was at Nairobi, receiving the judgment on 3rd December 2014. The Claimant/Respondent filed a replying affidavit maintaining that the Respondent was served with all mention and hearing notices. The court noted that its judgment had already found that the Respondent was served with the statement of claim and with hearing notices for 11th October 2013 and 16th July 2014, on both of which occasions it failed to attend, and that this finding was unchallenged. The summons, mention notice of 4th April 2013 and hearing notice of 26th June 2013 all indicated Nairobi, and the latter bore the Respondent's acknowledgement and company stamp. The affidavits of service by an authorized process server were unchallenged. Holding that the Respondent slept on its rights and that no justifiable reason for setting aside the judgment had been shown, the court dismissed the application with costs to the Claimant/Respondent on 31st July 2015.

Key legal issues

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01

Whether the alleged error on the hearing notice form (Nairobi vs Kisumu) justified setting aside the default judgment

Holding

No — the summons, mention notice and hearing notices all clearly indicated Nairobi, bore the Respondent's acknowledgement of receipt and company stamp, and the affidavits of service were unchallenged

Reasoning

The court noted its prior finding that the Respondent was served with the statement of claim and hearing notices for 11th October 2013 and 16th July 2014 but failed to attend on both occasions. That finding was not challenged in the application. The Notice of summons stated the Cause was filed at Nairobi; the mention notice of 4th April 2013 and hearing notice of 26th June 2013 also indicated Nairobi. The affidavits of service sworn by an authorized process server were unchallenged, so the isolated error on one notice form was insufficient.

p. 2

Legal principles established

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  • A party seeking to set aside an inter partes judgment must demonstrate justifiable reason, particularly where service was effected and not challenged; a party who sleeps on its rights cannot claim relief, and the successful claimant is entitled to enjoy the fruits of its judgment timeously.

Court orders

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  1. 1.The Notice of Motion dated 16th December 2014 seeking to set aside the judgment of 7th November 2014 is dismissed
  2. 2.Costs of the application awarded to the Claimant/Respondent
Jurisdiction invoked
Inherent review/set-aside jurisdiction of the Industrial Court over its own judgment (Cause No. 2430 of 2012)

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, "Kenya Union of Domestic, Hotels, Educational Insitutions, Hospitals and Allied Workers (KUDHEIHA) v Sasini Coffee House Limited [2015] KEELRC 663 (KLR)", Case Analysis (2015). Cause No. 2430 of 2012 (Notice of Motion filed 16th December 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/663/eng@2015-07-31

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