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ELRCDismissedNot stated in the judgment· [2018] KEELRC 1169 (KLR)

Moses Omondi Bisera v Chairman B. O. G. St. Linus Girls High School Etago [2018] KEELRC 1169 (KLR)

Employment and Labour Relations Court
20 September 2018
922 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Kisumu (Mathews N. Nduma, J) on the Respondent's Notice of Motion seeking to set aside an exparte judgment. The underlying suit, filed on 26th May 2015 and amended twice, claimed retirement and terminal benefits for 13 years of service. Judgment was entered exparte in favour of the Claimant in the sum of Kshs.889,116.85 after the Respondent failed to attend a hearing fixed on 10th July 2017 for 29th January 2018, with hearing notice served on and stamped by the Respondent's advocates on 12th July 2017. The Applicant argued its counsel was engaged in Kisii High Court Election Petition No. 3 of 2017 and had sent another counsel to hold brief who could not reach court. The court applied the principles in Maina Mugiria, Shah v Mbogo and Shabir Din v Ram Parkash Anand, holding that the discretion to set aside exparte judgments is free but must be exercised justly and is not designed to assist a party who deliberately obstructs or delays justice. The court found the Applicant gave two contradictory versions of its non-attendance - counsel engaged elsewhere in the motion, but blame of the court clerk in oral submissions - demonstrating lack of candour. No excusable mistake was shown; setting aside would cause grave injustice to a Claimant still unpaid after 13 years of service. The application was dismissed with costs.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 2
02

Whether setting aside the exparte judgment would prejudice the Claimant

Holding

Yes - setting aside would cause grave injustice given the Claimant's unpaid retirement and terminal benefits for 13 years of service.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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

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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, "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.