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ELRCDismissedNot stated in judgment· [2016] KEELRC 1249 (KLR)

Nathan Ogada Atiagaga v David Engineering Limited [2016] KEELRC 1249 (KLR)

Employment and Labour Relations Court
2 March 2016
MMM. Mbaru
2,679 words in judgment
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The bottom line

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A Kenyan employment court refused to reopen an ex parte judgment because the employer gave no good reason for missing the hearing.

What this practically means

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Executive summary

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The respondent in an employment dispute (a claim of unlawful and unfair dismissal) filed a notice of motion dated 18th January 2016 seeking to set aside an ex parte judgment and the ex parte proceedings of 27th July 2015, and to have the hearing commence de novo. The respondent explained that its advocate failed to diarise the hearing notice served on 5th December 2014 because he had not yet acquired a 2015 diary; subsequent attempts to file applications were frustrated by files going missing or being retained in chambers, and the respondent only learnt of the judgment when served with a bill of costs. The claimant opposed, asserting proper service, the respondent's presence at the mention of 12th August 2015 when judgment was scheduled, and prejudice in reopening a concluded case. The court framed three issues: setting aside the ex parte judgment, setting aside the 27th July 2015 proceedings, and ordering a de novo hearing. Relying on Caneland Ltd v Delphis Bank, the court held there were no proceedings capable of being stayed or set aside once judgment had been entered. It found the respondent was properly served with an acknowledged hearing notice, gave no reasons for non-attendance, and was aware from 12th August 2015 that the claimant had been heard in its absence. The respondent's affidavit dwelt on peripheral issues, and new explanations introduced at submissions stage could not be entertained. Applying Shah v Mbogo, the court held that a party who does not aid the course of justice should not benefit from the court's discretion, and found no sufficient cause to disturb the judgment or order a de novo hearing. The application was dismissed with costs to the claimant.

Key legal issues

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01

Whether the ex parte judgment should be set aside

Holding

The judgment was not set aside; the respondent gave no reasons for non-attendance despite service and was aware of the ex parte proceedings from 12th August 2015

Reasoning

The court found the respondent was served with the hearing notice, which was stamped and acknowledged, and its counsel appeared at the mention of 12th August 2015 when judgment was scheduled. The affidavit supporting the application did not explain the non-attendance on 27th July 2015. Setting aside a correctly delivered judgment where the claimant diligently prosecuted the suit would itself be an injustice. The respondent's reasons came after the fact and were mute.

p. 4
02

Whether the proceedings of 27th July 2015 should be set aside

Holding

Refused; nothing in the supporting affidavit addressed those proceedings

Reasoning

The hearing on 27th July 2015 proceeded on the basis of proper service confirmed by an Affidavit of Service sworn by Richard Wachira. The respondent's affidavit explanations started only from 26th August 2015 and deliberately dwelt on peripheral issues unrelated to the orders sought. Counsel's attendance on 12th August 2015 should have alerted him to take immediate remedial action on the missed hearing.

p. 4
03

Whether the hearing should commence de novo

Holding

Refused; no sufficient cause shown

Reasoning

Since the proceedings were not impugned and judgment had been delivered, commencing proceedings de novo would cause the claimant great injustice. Applying Shah v Mbogo, a party who does not aid the course of justice should not benefit from the court's discretion. The respondent had several pending applications which it made no effort to prosecute, including the application dated 26th August 2015.

p. 4

Legal principles established

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  • Stay of proceedings cannot be ordered where judgment has been entered, as there are no proceedings capable of being stayed.
  • A party cannot introduce new content, context, facts or evidence at the submissions stage of an application.
  • Lawful proceedings held with a party's knowledge and culminating in a correctly delivered judgment can only be disturbed on good cause.

Court orders

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  1. 1.The Respondent's application dated 18th January 2016 is dismissed
  2. 2.Costs awarded to the Claimant

Authorities

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Legislation

  • Employment and Labour Relations Court (Court) RulesRule 25

Cases cited (4)

  • Shah versus Mbogo
    [1967] EA
  • CMC Holdings Ltd versus James Mumo Nzioki
    [2004] eklr
  • Lucy Bosire versus kenhancha Div. Land Dispute Tribunal & 2 Others
    [2013] eklr
  • Caneland Ltd & Another versus Delphis Bank Ltd
    Civil Application No.307 of 1998
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court to set aside ex parte judgment and proceedings (application under the Court Rules, Rule 25 invoked by the Respondent)

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, "Nathan Ogada Atiagaga v David Engineering Limited [2016] KEELRC 1249 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1249/eng@2016-03-02

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