Alex Oluchili Miloko v Nakumatt Holdings Ltd [2016] KEELRC 299 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the default judgment should be set aside
No. The Respondent's excuse (theft on 23 November 2015) could not explain its absence from a hearing held on 3 November 2015, before the theft.
The Court recited the settled principles: the discretion to set aside is broad but must be exercised judicially and on just terms to avoid injustice, not to aid an indolent party. The Respondent's principal excuse was the burglary of 23 November 2015, yet the Cause was heard on 3 November 2015, roughly two weeks earlier. Counsel's explanation of an honest mistake did not cure the inconsistency. No sufficient or convincing reason justified non-attendance, and the motion failed.
Whether stay of execution should issue
No. Stay was unnecessary if setting aside failed; it was also not stay pending appeal.
The Court identified setting aside as the primary and relevant order. A grant of setting aside would render stay superfluous, and the stay sought was not one pending appeal. Having declined to set aside the judgment, the Court could not grant the consequential stay.
Whether the Claimant's further affidavit of 11 July 2016 should be considered
No, as no leave was sought to file it.
The Claimant filed a further affidavit on 11 July 2016 without seeking leave. The Court stated it would not consider this affidavit because no leave had been sought, though this did not affect the outcome, which turned on the internal inconsistency in the Respondent's own account of the theft date versus the hearing date.
Legal principles established
#- The discretion to set aside default judgment is not unlimited; it must be exercised judiciously, on just terms, to avoid injustice and not to reward indolence
- An excuse for non-attendance must actually account for the default; a reason post-dating the hearing cannot explain absence from it
Court orders
#- 1.The motion dated 12 May 2016 was dismissed
- 2.Costs of the application awarded to the Claimant
- Jurisdiction invoked
- Inherent discretion of the Employment and Labour Relations Court to set aside default judgment; rules of the Court referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Oluchili Miloko v Nakumatt Holdings Ltd [2016] KEELRC 299 (KLR)", Case Analysis (2016). Not stated in the judgment (ELRC Cause at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/299/eng@2016-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.