Kenya Plantation & Agricultural Workers Union & another v Kenya Tea Growers Association & another [2015] KEELRC 1609 (KLR)
The bottom line
#A company that waited over two years to challenge court orders lost because it couldn't explain the delay or prove it was never served with the case papers.
What this practically means
#Executive summary
#Key legal issues
#Efficacy of service of the applications of 24th January 2013 and 31st October 2013
Service was proper; the Affidavits of Service sworn by Martin Mwaniki established service of the joinder application and hearing notices
The court perused the various Affidavits of Service sworn by the process server, Mr. Mwaniki, covering service of the application and successive hearing notices. The Applicant did not seek to cross-examine the process server to challenge the authenticity of service, and the record showed the Applicant participated at the 2nd April 2014 hearing through an advocate. The claim that orders were obtained exparte behind its back therefore failed.
Delay in bringing the application to set aside the orders
The delay of over two years (for the 26th April 2013 orders) and one year (for the 2nd April 2014 orders) was inordinate and unexplained
The court noted at the outset that the orders sought to be reviewed or set aside had been made more than two years and one year respectively before the application, with no explanation offered for the delay. Unexplained inordinate delay weighed decisively against the exercise of the court's discretion to set aside or review its own orders, independently of the service issue.
Legal principles established
#- A party disputing service who fails to cross-examine the process server on the authenticity of service cannot later impugn it
- Inordinate and unexplained delay in seeking to set aside orders is a ground for dismissal of such an application
Court orders
#- 1.The Application dated 9th February 2015 is dismissed with costs to the 2nd Claimant/Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over Industrial Cause No. 45 of 2002 and related miscellaneous applications (inherent review powers over its own orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union & another v Kenya Tea Growers Association & another [2015] KEELRC 1609 (KLR)", Case Analysis (2015). Miscellaneous Application dated 9th February 2015 in Industrial Cause No. 45 of 2002 (Misc. Application No. 3 of 2013 referred). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1609/eng@2015-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.