Caleb Nasengo v Shanir Distributors Limited [2018] KEELRC 711 (KLR)
The bottom line
#A Kenyan court refused to undo a default judgment because the company ignored the case for years and showed no defence.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause was shown for setting aside the ex-parte judgment
No sufficient cause was shown; the affidavit did not state what prevented the Respondent from filing a defence or attending court, and there was no defence on record despite an averment that one was filed.
The court noted the applicant's supporting affidavit did not refer to any sufficient cause. The claimant annexed affidavits of service of mention, hearing, judgment and taxation notices, many stamped as received by counsel or effected in person. The respondent had also been granted leave to file a defence on 7th July 2015 on conditions it never complied with. The judgment was therefore regular and the discretion to set it aside was not triggered.
Whether the respondent's inaction amounted to negligence disentitling it to the court's discretion
The respondent's conduct was reckless or negligent; it was only moved by the proclamation of attachment, and its indolence could not be condoned.
The claimant demonstrated that leave to file a defence granted on 7th July 2015 was never complied with, thrown-away costs of Kshs.5,000 and adjournment fees of Kshs.1,000 were unpaid, and the respondent and its counsel failed to attend multiple hearings, mentions and post-judgment stages despite stamped service. The court concluded the respondent only woke 'from its deep slumber by the proclamation', and that a diligent litigant should not be denied the fruits of judgment.
Whether the respondent had an arguable defence raising triable issues
The respondent failed to demonstrate that it had any defence at all to the claim; no defence was on record notwithstanding the director's averment that one had been filed.
Following Sameer Africa Limited v Aggarwal & Sons Limited, sympathy for a litigant caught out by its advocates' mistake does not substitute for triable issues. The court observed that although Viral Hasmukh deposed that Rotuk and Company Advocates filed a defence, no defence appeared on the record. Without at least a demonstrable defence, setting aside could not be justified even if mistakes of counsel were not to be visited on the litigant.
Legal principles established
#- The court's discretion to set aside ex-parte judgment exists to do justice and avoid injustice from accident, inadvertence or excusable mistake, but is not designed to assist a party who deliberately obstructed or delayed the cause of justice; the nature of the action, the defence, compensability by costs and the reason for failure to attend must be considered, and denying a litigant a hearing should be the last resort.
- A litigant who has been duly served at every stage and shows no defence or sufficient cause cannot be allowed to defeat a regular judgment; compensation by costs is adequate.
Court orders
#- 1.The application dated 4th September 2017 is dismissed
- 2.Costs of the application to the claimant
- Jurisdiction invoked
- Inherent jurisdiction and power of the Employment and Labour Relations Court to set aside ex-parte judgment and stay execution, asserted by the Applicant that 'this Court has jurisdiction power and authority to make such orders' (exparte judgment delivered 23rd March 2017)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Caleb Nasengo v Shanir Distributors Limited [2018] KEELRC 711 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 4th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/711/eng@2018-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.