Mwangangi Mbumbu v Prime Steel Mills Limited [2019] KEELRC 2143 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant was duly served with summons, pleadings and notices
Service was properly effected on the Applicant's Assistant Human Resource Officers and Human Resource Manager, who were its employees at its recognised offices.
The court traced service on the record: summons on Stanley Okoth (Assistant HR Manager) at Kitengela, pre-trial notice on Charles Mateka, notice of taxation on Peter Kaguamba (HR Manager) at Westlands. The Applicant's own affidavits admitted these officers were its employees and that Kitengela and Westlands were its offices. It was inconceivable that HR officers did not understand the documents served. Kaguamba's denial of service was found untruthful.
Whether the Applicant was entitled to set aside the default judgment
Given proper service, the court exercised its discretion to set aside the judgment only on terms: filing a defence, depositing the decretal sum, thrown away costs and auctioneer's costs, failing which the judgment would be revived.
The court applied the principle that its discretion to set aside default judgment is wide and should be exercised to do justice, adopting the course carrying the lower risk of injustice. Although service was proper, the court considered the draft defence and the interest of justice, and granted setting aside subject to protective conditions securing the Claimant.
Legal principles established
#- The court has a wide discretion to set aside judgment, limited only by what is just.
- The court's overriding concern is to do justice to the parties and will not fetter its wide discretion.
- Where the court faces alternatives, it should take the course carrying the lower risk of injustice if it turns out to be wrong.
Court orders
#- 1.The application is granted and judgment and consequential orders set aside in part
- 2.The respondent shall within 14 days file defence, documents it wishes to rely on and witness statements
- 3.The respondent shall within 14 days deposit the decretal sum into court or in an interest earning account in the joint names of claimant's and respondent's advocates
- 4.The respondent shall pay the claimant a sum of Kshs.20,000 as thrown away costs within 14 days
- 5.The respondent shall pay auctioneer's costs
- 6.In default of compliance with any of the foregoing conditions the judgment will be revived
- Jurisdiction invoked
- Article 159 of the Constitution; sections 12 and 16 of the Employment and Labour Relations Court Act; rule 32 of the Industrial Court (Procedure) Rules, 2010; sections 1, 1A, 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangangi Mbumbu v Prime Steel Mills Limited [2019] KEELRC 2143 (KLR)", Case Analysis (2019). ELRC Cause (Nairobi) - Application dated 8th August 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2143/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.