Aggrey Tukunya Aluvance v Maike Potgieter & another [2019] KEELRC 1265 (KLR)
The bottom line
#An employer who ignores an employment case after entering appearance cannot later undo the judgment, but assets of a non-party company wrongly seized must be released.
What this practically means
#Executive summary
#Key legal issues
#Whether directions were taken before the cause was set down for hearing
Directions were taken on 24 October 2017 and the cause directed to proceed undefended.
The record showed the Court gave pre-trial directions after the Respondents failed to file a Response despite entering Appearance. The Respondents' assertion that no directions were issued was contradicted by the record, so the alleged irregularity in setting down the cause for hearing had no factual foundation.
Whether the Respondents were denied an opportunity to participate in the hearing
The Respondents were afforded opportunity more than once but snubbed it.
The Claimant's advocates twice invited the Respondents' advocates to fix a hearing date (22 January 2018 and 28 February 2018), the second invitation being received. The Respondents neither attended date-fixing nor explained why no Response was filed despite entering Appearance, forfeiting the chance to participate.
Whether failure to file submissions and absence of notice of judgment warranted setting aside
No; in an undefended cause these do not occasion prejudice justifying setting aside.
The Court held that in an undefended cause, the claimant's failure to file submissions or give notice of delivery of judgment does not prejudice a respondent who had already defaulted. The Respondents also did not demonstrate any draft Response or substantive triable defences that would justify reopening the cause.
Legality of the proclamation against the sister company's properties
The proclamation and warrants of attachment were irregular, unprocedural and illegal, and were set aside.
Le-Rustique Restaurant is in Westlands, Nairobi while the proclamation occurred in Nanyuki, and the proclaimed entity was not a party to the proceedings. The Claimant offered no explanation. The Court held the execution illegal and void but declined to set aside the judgment, confining the remedy to the execution process.
Legal principles established
#- In an undefended unfair termination cause, an employer's failure to file a Response deprives it of the foundation to participate, since the employer bears the statutory burden under sections 43 and 45 of the Employment Act.
- Failure by a claimant to file submissions or give notice of judgment in an undefended cause does not occasion prejudice warranting setting aside the judgment.
- Where execution is levied against property of a non-party, the proper remedy is to interdict/set aside the execution process, not to set aside the judgment.
Court orders
#- 1.The application to set aside the ex parte judgment/decree is dismissed for lack of merit
- 2.The warrants of attachment, proclamation and attachment are set aside as illegal and void
- 3.The Claimant to bear the auctioneers fees
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the employment cause and incidental execution proceedings (Employment Act, 2007; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aggrey Tukunya Aluvance v Maike Potgieter & another [2019] KEELRC 1265 (KLR)", Case Analysis (2019). Nairobi ELR Cause No. 1045 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1265/eng@2019-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.