David Njogu Kimemia v Kenya Association of Professional Counsellors [2018] KEELRC 1923 (KLR)
The bottom line
#A Kenyan employment court set aside a default judgment because the defendant was never properly served, giving it a second chance to defend the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment of 1st December 2017 should be set aside
The judgment was set aside because service was defective (effected on an unauthorized Office Assistant) and the Respondent's assertion of no notice was unrebutted, and the Respondent demonstrated a defence raising triable issues.
The court applied the Shah v Mbogo test, holding the discretion should be exercised to avoid injustice from excusable mistake rather than to reward deliberate obstruction. Service on a cleaner/office assistant not authorized to receive process was ineffective. The Executive Director's claim of no prior notice stood uncontradicted. Under Patel v East Africa Cargo Handling Services, a defence need not succeed; it suffices that it raises triable issues. Both limbs favored setting aside.
Legal principles established
#- The discretion to set aside an ex parte judgment is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
- In exercising the discretion to set aside an ex parte judgment, the court should consider each case on its own facts and circumstances
- A defence on merits need not be a defence that must succeed; it is sufficient that it raises triable issues
Court orders
#- 1.The ex parte judgment entered on 1st December 2017 is set aside
- 2.The Respondent is granted leave to defend the Claimant's claim
- 3.Costs of the application to abide the outcome of the retrial
- Jurisdiction invoked
- Inherent discretion of the Employment and Labour Relations Court to set aside ex parte judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Njogu Kimemia v Kenya Association of Professional Counsellors [2018] KEELRC 1923 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 20th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1923/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.