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ELRCDismissedNot stated in the judgment· [2016] KEELRC 902 (KLR)

Benson P.N. Murugami v Comprite Kenya Limited [2016] KEELRC 902 (KLR)

Employment and Labour Relations Court
20 June 2016
NMNzioki wa Makau
1,569 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost its bid to overturn a default judgment because it failed to prove it never received the court's hearing notice.

What this practically means

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Executive summary

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The Respondent/Applicant moved the Employment and Labour Relations Court under Order 12 Rule 7, Order 42 Rule 6(3), Order 45 and Order 51 of the Civil Procedure Rules, Sections 1A, 1B, 3A, 3B and 80 of the Civil Procedure Act and Article 50 of the Constitution, seeking to set aside an ex-parte judgment delivered on 19th April 2016, contending it was not served with a hearing notice or entry of judgment, that its case raised triable issues, and that it would suffer prejudice if the judgment stood, alternatively that any setting aside be conditional on deposit of the decretal sum in a joint account. The Claimant/Respondent opposed the motion, deponing that notices for the service week were sent to correct addresses and that the service week was widely publicised on the Judiciary and LSK websites, in the Daily Nation and Standard newspapers and on court notice boards. The court reviewed the principles in Patel v EA Cargo Handling Services Ltd, Shah v Mbogo and Mbogo v Shah on the discretion to set aside ex-parte judgments, noting the discretion is exercised to do justice and to avoid injustice from accident, inadvertence or excusable mistake, but not to assist those who obstruct or delay justice. The court held that the Respondent could not be believed given the abundance of information about the service week, and that there was no evidence the letter dispatched to Rustam Hira & Co. Advocates was returned unclaimed. The application was dismissed with costs to the Claimant. The judgment was delivered at Nairobi on 20th June 2016 by Nzioki wa Makau J.

Key legal issues

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01

Whether non-service of a hearing notice justified setting aside the ex-parte judgment

Holding

No. The court held that the Respondent could not be believed given the wide publication of the service week cause lists and the absence of evidence that the posted notice was returned unclaimed.

Reasoning

The court reasoned that the service week was advertised on the Kenya Law, Judiciary and LSK websites, in the Daily Nation and Standard newspapers, and on court notice boards. Advocates ordinarily peruse cause lists. No evidence showed the letter dispatched to Rustam Hira & Co. Advocates was returned unclaimed from the post office; only the advocate's word supported non-service, so the discretion to set aside was not engaged.

p. 3
02

Whether the Claimant was obliged to prove postage/service of the notice

Holding

No. The mere absence of an annexed proof of service did not avail the Respondent where no evidence showed the posted letter was returned unclaimed.

Reasoning

The court noted there was no evidence that the letter dispatched by the Deputy Registrar was returned unclaimed. While the applicant argued that giving an address in a letter was not proof of postage, the court weighed the wide publicity of the service week against the applicant's bare assertion and concluded the application lacked merit.

p. 3

Legal principles established

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  • The discretion to set aside ex-parte judgment is wide and unfettered, exercised to do justice to the parties
  • The discretion is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
  • An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong

Court orders

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  1. 1.The Respondent's Notice of Motion dated 25th April 2016 is dismissed
  2. 2.Costs of the application to the Claimant

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 12 Rule 7
  • Civil Procedure Rules 2010Order 42 Rule 6(3)
  • Civil Procedure Rules 2010Order 45 Rules 1, 2 and 5
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Act Cap 21 Laws of KenyaSections 1A, 1B, 3A, 3B and 80
  • Constitution of Kenya 2010Article 50

Cases cited (3)

  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Shah v Mbogo
    [1967] EA 116
  • Mbogo v Shah
    [1968] EA 93
Jurisdiction invoked
Order 12 Rule 7, Order 42 Rule 6(3), Order 45 Rules 1, 2 and 5, Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3A, 3B and 80 of the Civil Procedure Act (Cap 21); Article 50 of the Constitution of Kenya 2010

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, "Benson P.N. Murugami v Comprite Kenya Limited [2016] KEELRC 902 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/902/eng@2016-06-20

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