Misheck Kirimi Mwithimbu & 7 others v Liquidator Nkuene Farmers Co-operative Society & 17 others [2015] KEELRC 1040 (KLR)
The bottom line
#The Employment Court refused to undo a Kshs 53 million judgment because the employers falsely claimed they were never served with court papers.
What this practically means
#Executive summary
#Key legal issues
#Service of summons and hearing notice
The court found that all respondents, including the applicants, were served with summons to enter appearance but chose not to oppose the suit, except the 7th respondent which filed a defence but failed to attend the hearing despite service of the hearing notice on its advocate.
The court revisited its earlier judgment, which had found that all defendants except the 7th neither entered appearance nor filed defence, and that the 7th, though served with a hearing notice, did not attend. Those findings had not been set aside on review, and no material before the court warranted a different finding. The application's assertion of non-service was therefore misleading.
Existence of a serious defence justifying reopening the suit
No serious issue existed that would justify reopening the suit, since the claimants' terminal benefits claim had been acknowledged by the liquidator and partially settled.
The judgment under attack had found there was no dispute the plaintiffs were to be paid terminal benefits, that these had been computed and partly paid, and that the claim had been acknowledged by the liquidator. Those findings stood. Given the acknowledged claim, the applicants had no arguable defence, so leave to defend and setting aside of the judgment were refused.
Legal principles established
#- A party seeking to set aside an interlocutory judgment must establish a valid and just reason; an application founded on misleading facts about service cannot succeed, particularly where the underlying claim was acknowledged by the liquidator and partially settled.
Court orders
#- 1.The notice of motion filed on 21.05.2015 seeking to set aside the judgment dated 30.09.2014 and for leave to defend the suit is dismissed
- 2.Costs of the application awarded to the claimants
- Jurisdiction invoked
- Articles 25(c), 50(1), 159 and 162(2)(a) of the Constitution of Kenya; Industrial Court Act, No. 20 of 2011; Labour Institutions Act, No. 12 of 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Misheck Kirimi Mwithimbu & 7 others v Liquidator Nkuene Farmers Co-operative Society & 17 others [2015] KEELRC 1040 (KLR)", Case Analysis (2015). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1040/eng@2015-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.