Paul Odhiambo Ogunde v Maersk Kenya Limited [2016] KEELRC 1148 (KLR)
The bottom line
#A Kenyan employment court set aside a default judgment because default judgments are not allowed in employment cases—defences must be heard on the merits.
What this practically means
#Executive summary
#Key legal issues
#Whether default judgment could stand where there is no specific provision for default judgment under the Industrial Court (Procedure) Rules, 2010
The Rules make no provision for default judgment; the omission is deliberate, and an undefended claim should proceed to hearing rather than attract default judgment
Rule 22 governs proceedings in the absence of a party but makes no provision for default judgment. The court considered the omission deliberate because a claimant in an employment claim must prove the ingredients of the claim whether or not the claim is defended. The proper course upon a failure to file a defence is to list the matter as an undefended claim for hearing, which may be lost.
Whether it is proper to enter default judgment on a mention date
It is not; substantive orders ought not to be made on a mention date since parties lack the opportunity to make substantive submissions
Relying on the cited authorities, the court held that parties do not have an opportunity to make substantive submissions on a mention date, and substantive orders made then could occasion injustice. The default judgment entered on 5th October 2015, a mention date, was therefore irregular.
Whether out-of-court settlement negotiations excuse failure to file a Response
Negotiations do not stay proceedings, but a party should not be locked out of proceedings except in exceptional circumstances
The court agreed with the claimant that settlement negotiations do not operate as a stay of proceedings. Nevertheless, in the interest of justice, the respondent's failure to file a response did not warrant permanent exclusion from the proceedings, particularly where no irreversible prejudice would be suffered.
Legal principles established
#- Substantive orders should not be granted on a mention date because parties have no opportunity to make substantive submissions
- Where a Respondent fails to file a defence in an employment claim, the correct course is to fix the matter for hearing as an undefended claim, since a Claimant must still prove the ingredients of the claim
- A party should not be locked out of proceedings except in exceptional circumstances
Court orders
#- 1.The default judgment entered on 5th October 2015 is set aside
- 2.The Respondent is granted leave to file a Response out of time and the Response attached to the application is deemed duly filed
- 3.The Respondent will pay the costs of this application
- Jurisdiction invoked
- Industrial Court (Procedure) Rules, 2010 (Rule 22) - original employment and labour relations jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Garnishee/Applicant v Advocate/Respondent (Notice of Motion dated 27th January 2020)[2020] KEHC 6917 (KLR)14 Apr 2020followed
- Garnishee/Applicant v Advocate (Respondent) - Notice of Motion dated 27th January 2020[2020] KEHC 6923 (KLR)14 Apr 2020followed
- Garnishee/Applicant v Respondent (Notice of Motion dated 27th January 2020)[2020] KEHC 6935 (KLR)14 Apr 2020followed
- Garnishee/Applicant v Respondent (Notice of Motion dated 27th January 2020)[2020] KEHC 6938 (KLR)14 Apr 2020followed
- PC v MAO[2020] KEHC 7864 (KLR)5 Mar 2020followed
Cite this brief
#Cite this brief
Caselaw, "Paul Odhiambo Ogunde v Maersk Kenya Limited [2016] KEELRC 1148 (KLR)", Case Analysis (2016). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1148/eng@2016-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.