Zakaria Jilo Kitoko & John Duko Rhigho v African Muslim Agency [2018] KEELRC 733 (KLR)
The bottom line
#A Kenyan employment court refused to overturn a default judgment, ruling that a company that ignored court papers for over a year cannot blame its lawyer.
What this practically means
#Executive summary
#Key legal issues
#Whether an ex parte judgment should be set aside on the ground of an advocate's mistake
No - the Respondent's own conduct (delay in instructing an advocate, failure to follow up, ignoring service of the Bill of Costs) showed the mistake was not excusable
The court accepted it was served with summons in May 2017 but waited two months before instructing an advocate. Even after instruction, it did not follow up the matter, and it ignored the Bill of Costs and Notice of Taxation served in May 2018, instead filing pleadings without leave in an already concluded matter. Such a litigant falls outside the protection of the Mbogo v Shah discretion, and the application amounted to an abuse of process.
Whether the mistake of an advocate should be visited upon an innocent litigant
The principle was rejected on the facts because the Respondent itself contributed to the delay and was not an innocent litigant
The Respondent argued that a mistake of an advocate should not be visited on an innocent litigant, invoking Mbogo & another v Shah. The court held that the discretion under that case is meant to avert injustice from inadvertent or excusable mistake, not to obstruct justice. Here the Respondent's own inaction - holding the summons for two months and ignoring subsequent service - meant the equity of the principle did not avail it.
Legal principles established
#- The court's discretion to set aside ex parte proceedings exists to avert injustice from inadvertent or excusable mistake, and must not be used to delay or obstruct justice
Court orders
#- 1.The Respondent's Notice of Motion dated 16th August 2018 is dismissed
- 2.Costs of the application to the Claimants
- Jurisdiction invoked
- Inherent discretion of the court to set aside ex parte proceedings and judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zakaria Jilo Kitoko & John Duko Rhigho v African Muslim Agency [2018] KEELRC 733 (KLR)", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/733/eng@2018-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.