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ELRCAllowedELRCC (unspecified number; test case for ELRCC No. 765 of 2015 and 799 of 2015)· [2017] KEELRC 1876 (KLR)

Gabriel Ogola Oluoch v Afrika Pearl & Spa Luxury Diani Beach Boutique Hotel [2017] KEELRC 1876 (KLR)

Employment and Labour Relations Court
20 January 2017
OMO. N. MAKAU
418 words in judgment
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The bottom line

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Kenya's Employment Court set aside default judgments after the employer paid throw-away costs, showing courts favour hearing cases over technical wins.

What this practically means

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Executive summary

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Following ex parte judgments delivered on 11.11.2016 in this file and in ELRCC No. 765 of 2015 and No. 799 of 2015, the respondent (applicant) filed Notices of Motion dated 13.11.2016 seeking to set aside the ex parte judgments and leave to defend, contending she was never served with summons and had a defence raising triable issues. The claimants opposed, asserting service had been effected and that the draft defence raised no triable issues. The motions were set down on 21.11.2016 with the parties agreeing that the motion in this file proceed as a test case whose outcome would apply to the other two files. At submissions, claimants' counsel, though opposed, conditionally conceded to setting aside the judgment upon payment of throw away costs of Kshs.30,000 and deposit of the judgment debt, citing fear that the respondent was closing shop; defence counsel offered Kshs.10,000 and denied impecuniosity. In light of this possible compromise, and given defence counsel's concession that the respondent had in fact been served but defaulted in filing a defence, the court declined to adjudicate the merits of the motion. Invoking the court's purpose of doing justice, Makau J set aside the ex parte judgments on conditions: payment of Kshs.20,000 throw away costs within 14 days (in default execution to proceed), filing of pleadings within 14 days, with the orders extending to the motions in the two companion files. Judgment dated and delivered at Mombasa on 20 January 2017.

Key legal issues

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Whether the ex parte judgment should be set aside

Holding

The judgment was set aside on compromise terms, with the payment of throw away costs and filing of pleadings as conditions, obviating need to decide the merits of the motion.

Reasoning

Counsel for the claimant, though opposed, conditionally conceded to setting aside if paid throw away costs and had the judgment debt deposited. Defence counsel conceded the respondent was served and simply defaulted in filing a defence. Given the parties' positions signalling compromise, the court found it unnecessary to determine the merits and set the judgment aside on conditions securing the claimant's costs.

p. 2

Legal principles established

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  • The overriding purpose of the court is to do justice between the parties, which may justify setting aside an ex parte judgment on consent-based terms rather than adjudicating the merits of the application.

Court orders

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  1. 1.The judgments of the court dated 11.11.2016 be and is hereby set aside
  2. 2.The respondent to pay the claimant kshs.20,000 as throw away costs within 14 days from today as a condition for the setting aside the judgment and in default execution to proceed
  3. 3.The respondent to file his pleadings within 14 days from today
  4. 4.The orders in this file to apply in respect of the Motion in ELRCC 765 of 2015 and 799 of 2015
Jurisdiction invoked
Inherent powers of the court to set aside ex parte judgment and do justice between the parties

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, "Gabriel Ogola Oluoch v Afrika Pearl & Spa Luxury Diani Beach Boutique Hotel [2017] KEELRC 1876 (KLR)", Case Analysis (2017). ELRCC (unspecified number; test case for ELRCC No. 765 of 2015 and 799 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1876/eng@2017-01-20

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