Joseph Sohelo Mariko & another v Padya Mukesh t/a Relish Restaurant [2016] KEELRC 37 (KLR)
The bottom line
#A Kenyan employment court refused to undo a judgment, holding that a business owner who participated in the case cannot hide behind the business name to dodge paying the award.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was aware of the proceedings despite claiming loss of contact with his advocates
The court held the Respondent was aware of the proceedings at all material times, having entered appearance, filed a defence, and changed advocates by consent
The Respondent entered appearance on 29th August 2013 through advocates who filed a defence on 13th September 2013. Paragraph 2 of the defence admitted the descriptive contents of the memorandum of claim identifying the Respondent as employer. Hearing notices were served on advocates on record, evidenced by Affidavits of Service. A consent between the former and new advocates confirmed continued contact. The claim of lost communication was therefore untenable.
Whether the Respondent could escape liability by pointing to the directors/shareholders of Relish Restaurant Ltd per the CR12
No - the Respondent could not hide behind the business name to negate the proceedings and avoid execution
The defence filed admitted the description of the Respondent as employer, setting the hearing in motion against the correct respondent. No evidence of the Respondent's employment terms or termination dates was provided. If a third party ought to bear the judgment, the set procedure for joining third parties should have been invoked, not an application to set aside judgment for cross-examination.
Whether the application amounted to abuse of court process
Yes; the application was an abuse of process and was dismissed with costs
The Respondent sought to set aside judgment, cross-examine the Claimants and offer a defence, yet the application did not state who would play that role in the Respondent's absence, and the request itself admitted the correct party had been sued. The consent to change advocates after judgment was characterized by the Claimants as obstruction of justice. The application thus lacked merit.
Legal principles established
#- A party who entered appearance and filed a defence admitting the descriptive contents of a claim cannot later deny being the correct party to avoid execution
- A consent to change advocates is evidence that a party has been in touch with and able to trace his advocates, undermining claims of lost communication
- A party who believes a third party ought to bear the judgment must follow the set procedure for joining that third party
Court orders
#- 1.The application dated 3rd October 2016 is dismissed
- 2.Costs of the application to the Claimants
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (cause heard to judgment on 29th July 2016; application arising therefrom)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Parmar v African Expess Airways (Cause 1434 of 2017) [2023] KEELRC 1028 (KLR)[2023] KEELRC 1028 (KLR)27 Apr 2023
- Andrew Natembea Wafula v Metal Cans & Closures Kenya Ltd & Lupra Manpower and HR Management Services (Cause 734 of 2014) [2016] KEELRC 1859 (KLR)[2016] KEELRC 1859 (KLR)4 Aug 2016
Cite this brief
#Cite this brief
Caselaw, "Joseph Sohelo Mariko & another v Padya Mukesh t/a Relish Restaurant [2016] KEELRC 37 (KLR)", Case Analysis (2016). Application/Notice of Motion dated 3rd October 2016 (Cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/37/eng@2016-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.