Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherNairobi ELR Cause No. 1045 of 2015· [2019] KEELRC 1265 (KLR)

Aggrey Tukunya Aluvance v Maike Potgieter & another [2019] KEELRC 1265 (KLR)

Employment and Labour Relations Court
5 July 2019
1,081 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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

#
This was a ruling on the Respondents' motion of 24 April 2019 seeking to set aside, ex debito justitiae, the ex parte judgment delivered on 23 November 2018 by Radido J in Nairobi ELR Cause No. 1045 of 2015, in which the Claimant was awarded Kshs 237,076/-. The Respondents had entered Appearance but never filed a Response, and on 24 October 2017 the Court directed the cause to proceed undefended. The Respondents argued that no directions were taken, that hearing and judgment notices were not served, that the Claimant failed to file submissions, and that a proclamation had been levied against a sister company's properties. The Court found directions had been taken, and that the Claimant's advocates had twice invited the Respondents to fix a hearing date without response; the Respondents also never explained the absence of a Response, which the Court held was necessary for an employer to discharge the statutory burden under sections 43 and 45 of the Employment Act, 2007. Failure to file submissions or give notice of judgment in an undefended cause was held not to be prejudicial. However, the Court found the proclamation of the sister company's properties — an entity not party to the suit, and executed in Nanyuki rather than Nairobi — irregular, unprocedural and illegal. The Court declined to set aside the judgment but set aside the warrants, proclamation and attachment, and ordered the Claimant to bear the auctioneers fees. Judgment delivered in Nairobi on 5 July 2019.

Key legal issues

#
01

Whether directions were taken before the cause was set down for hearing

Holding

Directions were taken on 24 October 2017 and the cause directed to proceed undefended.

Reasoning

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.

p. 2
02

Whether the Respondents were denied an opportunity to participate in the hearing

Holding

The Respondents were afforded opportunity more than once but snubbed it.

Reasoning

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.

p. 2
03

Whether failure to file submissions and absence of notice of judgment warranted setting aside

Holding

No; in an undefended cause these do not occasion prejudice justifying setting aside.

Reasoning

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.

p. 2
04

Legality of the proclamation against the sister company's properties

Holding

The proclamation and warrants of attachment were irregular, unprocedural and illegal, and were set aside.

Reasoning

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.

p. 3

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. 1.The application to set aside the ex parte judgment/decree is dismissed for lack of merit
  2. 2.The warrants of attachment, proclamation and attachment are set aside as illegal and void
  3. 3.The Claimant to bear the auctioneers fees

Authorities

#

Legislation

  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
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.