Beatrice Angeso Onyuro v Niti Distributors Limited [2015] KEELRC 1238 (KLR)
The bottom line
#A Kenyan employment court set aside a default judgment against an employer, but only after it paid Kshs. 25,000 in costs, and an NSSF audit order still stands.
What this practically means
#Executive summary
#Key legal issues
#Properness of service on the company
Service was not conclusively established as proper; the Claimant did not establish that the office where service was effected was the registered office
Section 391(1) of the Companies Act permits service on an officer, by registered post, or by leaving documents at the registered office. The Claimant did not prove that the place of service was the registered office, and the Civil Procedure Rules 2010 raise the threshold for service of summons. The Respondent's proof that its deponent was out of the country was itself incomplete.
Exercise of discretion to set aside default judgment
Judgment set aside on terms despite gaps in the Respondent's proof, because triable issues emerged and justice required that the Respondent be allowed to defend
Applying Shah v Mbogo, CMC Holdings v Nzioki and Patel v EA Cargo Handling, the court's main concern is doing justice. Although the passport exit page and proof of absence of a principal officer were not produced, and no security was tendered, the draft defence raised triable issues warranting setting aside on terms of throwaway costs.
Legal principles established
#- The discretion to set aside an ex parte judgment is exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed justice
- In setting aside an ex parte judgment the court considers both the reasons for default and whether the proposed defence raises triable issues
Court orders
#- 1.Default judgment entered on 12th June 2014 and final judgment delivered on 15th October 2014 set aside on terms
- 2.Respondent to pay throwaway costs of Kshs. 25,000/- to the Claimant before appearance and defence can be filed
- 3.Suit to be set down for hearing after the close of pleadings at the Registry in the normal manner
- 4.The part of the judgment ordering an NSSF audit of the Respondent to ensure payment of statutory deductions stands
- Jurisdiction invoked
- Inherent discretion to set aside default judgment under the Civil Procedure Act and Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beatrice Angeso Onyuro v Niti Distributors Limited [2015] KEELRC 1238 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1238/eng@2015-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.