Moses Omondi Bisera v Chairman B. O. G. St. Linus Girls High School Etago [2018] KEELRC 1169 (KLR)
The bottom line
#A Kenyan employment court refused to undo a Kshs.889,116 judgment against a school because its explanation for missing the hearing kept changing.
What this practically means
#Executive summary
#Key legal issues
#Whether non-attendance at the hearing, allegedly due to counsel's engagement in Kisii High Court Election Petition No. 3 of 2017, constitutes an excusable mistake justifying setting aside the exparte judgment
It does not. The Applicant gave contradictory versions - first that counsel was engaged in another court and had sent an unnamed advocate to hold his brief, then that his court clerk failed to inform him of the date - demonstrating a lack of candour and an intention to delay justice.
The hearing date was taken on 10th July 2017 and served on the Respondent's advocates on 12th July 2017 by stamped and signed return of service, more than eight months before the hearing. The Respondent neither attended nor communicated its engagement to the Claimant's advocates. No unnamed advocate appeared to hold brief. Counsel's oral submissions contradicted the sworn grounds, showing the application was not candid and the discretion could not properly be exercised in its favour.
Whether setting aside the exparte judgment would prejudice the Claimant
Yes - setting aside would cause grave injustice given the Claimant's unpaid retirement and terminal benefits for 13 years of service.
The court noted the Claimant had waited several years and eight months from the taking of the hearing date to the hearing itself. The court had already considered the statement of defence and documents on file and found no specific responses to the claim for retirement benefits, so reopening the judgment would only further delay payment of accrued entitlements.
Legal principles established
#- The discretion to set aside an exparte judgment is free but must be exercised justly to avoid injustice from accident, inadvertence or excusable mistake, and not to assist a party who deliberately seeks to obstruct or delay justice
Court orders
#- 1.The Notice of Motion dated 8th May 2018 seeking to set aside the exparte judgment is dismissed with costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Omondi Bisera v Chairman B. O. G. St. Linus Girls High School Etago [2018] KEELRC 1169 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1169/eng@2018-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.