Josphat Munke Mpoe v David Waiganjo Koinange [2015] KEELRC 1291 (KLR)
The bottom line
#A Kenyan employer who ignored an employment claim lost a Kshs 5.4 million judgment and could not undo it without showing a real defence.
What this practically means
#Executive summary
#Key legal issues
#Leave for an advocate to come on record after judgment (Order 9 rule 9)
The requirement was satisfied; the consent of the former advocates was obtained and filed, and the earlier irregularity of filing before formal leave was granted was cured by the ex post facto leave granted on 5 March 2015
Order 9 rule 9 requires a post-judgment advocate either to apply on notice to all parties or to obtain the consent of the previous advocate, with leave of court. Mongeri & Co. obtained the written consent of Mirugi Kariuki & Co. and filed it on 23 February 2015, though after the motion of 20 February 2015. The court held this was an irregularity but caused the Claimant no prejudice or injustice, and cured it by granting leave retrospectively.
Whether the ex parte judgment should be set aside for non-service of a hearing notice
Rejected; the hearing date of 26 November 2014 had been fixed by consent in the presence of the Respondent's counsel, so service of a hearing notice was unnecessary
The record showed the Respondent's counsel present on 10 February 2014, 8 May 2014 and 25 June 2014 when hearing dates were fixed, the last by consent with costs of the day granted to the Respondent. The contention that neither the Respondent nor his advocates were served with a hearing notice was therefore misplaced, and the Respondent could not succeed on this ground.
Whether there were triable issues warranting setting aside and leave to defend (Order 10)
None demonstrated; the Respondent neither filed a Response to the Memorandum of Claim nor annexed a draft Response to the motion
The Respondent was served personally on 29 October 2013 and was required to respond within 14 days, but never did, and gave no explanation. Feeble settlement negotiations were no excuse. The court distinguished setting aside (Order 10) from stay pending appeal (Order 42), and applying the discretionary principles (including those in Kenya Steel Fabricators Ltd v Kenya Auto Electrical, cited by the Claimant) found the test unsatisfied.
Natural justice / opportunity to be heard
The right was not infringed; the Respondent was informed of the claim, forum and timelines through service of summons and the Memorandum of Claim but simply failed to respond
While natural justice is a cornerstone of the administration of justice, procedural steps are its handmaidens. The summons informed the Respondent of the timeline, forum and venue for response, and he was served with the Memorandum of Claim. His unexplained failure to respond could not be undone under the guise of the interest of justice or the fundamental right to a hearing.
Parallel procedures (appeal filed and setting aside sought)
Left undetermined as non-determinative in the circumstances
The Claimant argued, relying on African Airlines International and Halai & Ar v Thornton & Turpin, that once a Notice of Appeal was filed the proper forum was the Court of Appeal, so the Respondent could not pursue two distinct procedures. The court declined to decide the point because it was not determinative of the motion, which failed on the substantive grounds already considered.
Legal principles established
#- After judgment, a new advocate may come on record only with leave of court or the consent of the previous advocate filed with such leave; a defect in timing that causes no prejudice is an irregularity curable by ex post facto leave
- A party seeking to set aside a regular judgment and leave to defend must demonstrate at least one triable issue, ordinarily through a draft defence
- Where parties fix a hearing date by consent in court, no service of a hearing notice is required
Court orders
#- 1.Leave previously granted on 5 March 2015 to Mongeri & Co. Advocates to come on record after judgment (ex post facto) confirmed as curing the irregularity
- 2.Motion dated 20 February 2015 dismissed
- 3.Costs of the motion awarded to the Claimant
- Jurisdiction invoked
- Inherent discretion under sections 1A and 3A of the Civil Procedure Act; Order 9 and Order 10 of the Civil Procedure Rules (employment cause originally determined by the Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Munke Mpoe v David Waiganjo Koinange [2015] KEELRC 1291 (KLR)", Case Analysis (2015). Cause (motion dated 20 February 2015 following judgment of 6 February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1291/eng@2015-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.