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ELRCAllowedNot stated in the judgment· [2018] KEELRC 2279 (KLR)

Peter Odhiambo Ogutu v Valley View Office Park Limited [2018] KEELRC 2279 (KLR)

Employment and Labour Relations Court
16 February 2018
ANAbuodha Jorum Nelson
253 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court set aside a default judgment because the employer was never properly served, and both sides must now start the case afresh.

What this practically means

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Executive summary

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The respondent moved the court by Notice of Motion dated 29th November 2017 seeking to set aside an ex parte judgment delivered on 17th June 2016 and, further, stay of execution. The application was supported by the affidavit of Simon Karuri, who deponed that the respondent was never served with summons, denied that the respondent had any guard by the name Samuel or an employee called Vincent, and stated that if service had been effected he would personally have received the summons. The claimant filed no response to the application, leaving the respondent's averments uncontested. The court held that the right to be heard is a fundamental principle of natural justice which ought not to be deprived of unless for good cause, and that the claimant can still enjoy the fruits of his judgment if successful after an inter partes hearing. The court set aside the ex parte judgment and directed the respondent to file and serve a memorandum of response within 21 days, failing which the ex parte judgment would stand reinstated and execution proceed. Upon filing the response, the parties were to set the suit down for hearing afresh at the Registry. The ruling was delivered at Nairobi on 16th February 2018 by Abuodha Jorum Nelson, Judge. No costs order was made and no authorities or statutes were cited.

Key legal issues

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01

Whether the ex parte judgment should be set aside for want of service

Holding

The ex parte judgment was set aside on the ground that the right to be heard is a fundamental principle of natural justice, and the claimant's failure to respond left the respondent's averments of non-service uncontested

Reasoning

The respondent deponed through Simon Karuri that it was never served, that it had no guard named Samuel or employee called Vincent, and that he personally would have received any summons. The claimant filed no response, leaving those averments uncontested. The court held that the right to be heard is fundamental and that the claimant can still enjoy the fruits of judgment after an inter partes hearing.

p. 2

Legal principles established

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  • The right to be heard is a fundamental principle of natural justice which should not be denied unless for good cause

Court orders

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  1. 1.The ex parte judgment delivered on 17th June 2016 is set aside
  2. 2.The respondent to file and serve a memorandum of response within 21 days from the date of the order, in default the ex parte judgment shall stand reinstated and execution to proceed
  3. 3.Upon filing the response, parties to set the suit down for hearing afresh at the Registry
Jurisdiction invoked
Inherent powers of the Employment and Labour Relations Court to set aside ex parte judgments in the interest of natural justice (no specific provision cited)

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, "Peter Odhiambo Ogutu v Valley View Office Park Limited [2018] KEELRC 2279 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2279/eng@2018-02-16

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