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ELRCDismissedNot stated in the excerpt· [2018] KEELRC 2025 (KLR)

Joseph Mote Nzuki v Memba Muriuki [2018] KEELRC 2025 (KLR)

Employment and Labour Relations Court
11 May 2018
MOMaureen Onyango
1,037 words in judgment
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The bottom line

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The Employment Court refused to undo a judgment passed without the employer, because he offered no real evidence explaining why he missed the hearing.

What this practically means

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Executive summary

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This was an application filed on 29th November 2017 under certificate of urgency by Memba Muriuki, the respondent in the suit, seeking an order setting aside the ex parte judgment delivered on 24th November 2017 by Hon. Judge Mathews Nderi Nduma, together with any further relief the court deemed fit. The applicant explained that his advocate, Paul Kiarie, had a hearing in Kisumu on the hearing date of 27th September 2017 and instructed another advocate, Emmanuel Kyalo, to hold his brief and seek an adjournment, but Mr. Kyalo failed to attend without explanation. He attributed the loss of the suit to his advocate's negligence and offered to deposit the decretal amount in court. The claimant opposed, pointing out that service of the hearing notice was admitted, that sufficient time existed to organise counsel's diary, and that there was no documentary proof that Kiarie was in Kisumu or that Kyalo was instructed to hold brief. The court framed a single issue: whether there were justifiable reasons for setting aside the ex parte judgment. Relying on Section 16 of the Employment and Labour Relations Court Act and the principles in Patel v East Africa Cargo Handling Services and related authorities on sufficient cause, Justice Maureen Onyango held that the applicant's averments were unsupported, amounted to hearsay, and gave no explanation for his own absence. Finding no sufficient cause, the court dismissed the application with costs on 11th May 2018.

Key legal issues

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01

Whether sufficient cause existed to set aside the ex parte judgment

Holding

No sufficient cause was established; the application was dismissed with costs

Reasoning

The applicant did not deny service. His claims that his advocate was in Kisumu on a matter under certificate and had instructed another advocate to hold his brief were unsupported by any evidence - no affidavit from either advocate, no case number or pleadings from the Kisumu court. The averments were matters the applicant did not witness himself and were therefore hearsay. He also failed to explain his own absence from court on the hearing date.

p. 2

Legal principles established

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  • A regular judgment will not usually be set aside unless the court is satisfied there is a defence on the merits; the court's discretion to do justice should not be fettered
  • 'Sufficient cause' should receive a liberal construction to advance substantial justice where no negligence, inaction or want of bona fides is imputed
  • Liberal interpretation of 'sufficient cause' must accord with judicial principles; a good case on the merits without valid excuse for delay does not compel exercise of discretion in the litigant's favour

Court orders

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  1. 1.Application to set aside the ex parte judgment delivered on 24th November 2017 dismissed
  2. 2.Application dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16

Cases cited (3)

  • PATEL -VS- EAST AFRICA CARGO HANDLING SERVICES
  • Registered Trustees of the Archdiocese of Dar es Salaam -vs- The Chairman Bunju Village Government & Others
  • Daphene -vs- Murray Alexander Carson
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act (powers to review its decisions)

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, "Joseph Mote Nzuki v Memba Muriuki [2018] KEELRC 2025 (KLR)", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2025/eng@2018-05-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.