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ELRCDismissedNot stated in the judgment as provided· [2016] KEELRC 744 (KLR)

Paul Makau Mututu v Nasib Industrial Products Limited [2016] KEELRC 744 (KLR)

Employment and Labour Relations Court
9 September 2016
LNLINNET NDOLO
1,329 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to undo a judgment won in a party's absence because the absent party repeatedly ignored court dates without explanation.

What this practically means

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Executive summary

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The Respondent, whose defence had been heard ex parte, applied by Notice of Motion dated 7th March 2016 to set aside the proceedings of 9th November 2015 and the judgment of 5th February 2016 entered in favour of the Claimant. Supported by affidavits of Charles Njenga, Advocate, and Willis Agayi, the Respondent contended that a court clerk named 'James' purportedly fixed the hearing date for its Advocates, Muchoki Kang'ata Njenga & Co., on 5th December 2014, but that no such clerk existed, that clerk Willis Agayi never attended the Registry in the matter, that no hearing notice was served, and that submissions were not served as directed. The Claimant replied through Namada Simoni, Advocate, and his clerk Festus Kyalo, who deponed that he met 'James' at the Registry holding a copy of the invitation notice and that they mutually fixed the hearing date. The court identified a single issue: whether the Respondent had made out a case for setting aside the proceedings and judgment. Applying its own decision in Joseph Macharia Mbugua v M/s Young Club 7 & Restaurant and Order 12 Rule 7 of the Civil Procedure Rules, the court held the discretion must be exercised judiciously. It found that even if 'James' lacked instructions, the Respondent's Advocates failed, without explanation, to honour the Registry invitation, the mention notice served for 8th December 2015, and the Claimant's costs compromise letter. The judgment had also considered the Respondent's Response filed on 26th August 2014. The application was dismissed with costs to the Claimant on 9th September 2016.

Key legal issues

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Whether the Respondent demonstrated sufficient cause for setting aside the ex parte proceedings and judgment

Holding

The application was dismissed; the Respondent failed to honour the invitation to fix a hearing date, the mention notice, and a costs proposal, and no explanation was offered for these failures

Reasoning

The court accepted that the Respondent's Advocates received the invitation letter of 19th November 2014. Even if the clerk 'James' lacked instructions, the Advocates' failure to attend the Registry without explanation constituted non-cooperation. They also failed to attend the mention of 8th December 2015 despite service and did not respond to the costs compromise letter. The discretion under Order 12 Rule 7 was therefore declined, especially since the judgment had considered the Respondent's filed Response.

p. 3

Legal principles established

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  • The power to set aside ex parte proceedings and judgment under Order 12 Rule 7 is discretionary and must be exercised judiciously, taking into account the applicant's explanation, any obstruction of justice, and any defence on record

Court orders

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  1. 1.The Respondent's application dated 7th March 2016 is dismissed
  2. 2.Costs of the application are awarded to the Claimant
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules (discretion to set aside ex parte judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Makau Mututu v Nasib Industrial Products Limited [2016] KEELRC 744 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/744/eng@2016-09-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.