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ELRCPartially AllowedELRC Cause (Nairobi) - Application dated 8th August 2018· [2019] KEELRC 2143 (KLR)

Mwangangi Mbumbu v Prime Steel Mills Limited [2019] KEELRC 2143 (KLR)

Employment and Labour Relations Court
22 February 2019
2,365 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant (Respondent in the underlying employment cause) moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 8th August 2018 seeking stay of execution of the decree dated 16th February 2018 and warrants of attachment dated 3rd August 2018, setting aside of the default judgment entered against it, a restraining order against the Claimant, and costs. The Applicant contended it was never served with summons to enter appearance and that the persons served were not authorised to receive process. The Claimant opposed, asserting due service on the Applicant's Human Resource officers at Kitengela and Westlands, and that the Applicant habitually waited until execution before seeking setting aside. The court framed two issues: due service and entitlement to the orders sought. On the record, service had been effected on Stanley Okoth and Charles Mateka, Assistant Human Resource Officers, at Kitengela, and on Peter Kaguamba, Human Resource Manager, at Westlands - all admitted employees of the Applicant at its recognised offices. The court found service proper and Kaguamba's affidavit untruthful. Applying the wide discretionary principles in Shanzu Investment, Patel and Films Rover International, the court nonetheless set aside the default judgment in part in the interest of justice, on terms: filing of defence, documents and witness statements within 14 days, deposit of the decretal sum into court or a joint interest-earning account, payment of Kshs.20,000 thrown away costs and auctioneer's costs, with the judgment to be revived on default. Judgment delivered at Nairobi on 22nd February 2019 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the Applicant was duly served with summons, pleadings and notices

Holding

Service was properly effected on the Applicant's Assistant Human Resource Officers and Human Resource Manager, who were its employees at its recognised offices.

Reasoning

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.

p. 4
02

Whether the Applicant was entitled to set aside the default judgment

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application is granted and judgment and consequential orders set aside in part
  2. 2.The respondent shall within 14 days file defence, documents it wishes to rely on and witness statements
  3. 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. 4.The respondent shall pay the claimant a sum of Kshs.20,000 as thrown away costs within 14 days
  5. 5.The respondent shall pay auctioneer's costs
  6. 6.In default of compliance with any of the foregoing conditions the judgment will be revived

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Employment and Labour Relations Court Actsections 12 and 16
  • Industrial Court (Procedure) Rules, 2010rule 32; Court Vacation Rules rule 3
  • Civil Procedure Actsections 1, 1A, 3 and 3A
  • Civil Procedure RulesOrder 5 Rule 3
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 11(6) and (7)

Cases cited (6)

  • Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd vs. Augustine Kubede
    (1982-1988) KAR
  • Felister Nduku Nzaku vs. Joyce Wairimu Gitau
    [2017] eKLR
  • Shanzu Investment Ltd vs. the Commissioner of Lands
    Civil Appeal No. 100 of 1993 [1993] eKLR
  • Patel vs. East Africa Cargo Handling Services Limited
    (1974) EA 75
  • Lochab Bros. Limited vs. Peter Kaluma T/A Lumumba Mumma & Kaluma Advocates & 2 others
    (2013) eKLR
  • Films Rover International Ltd v Cannon Film Sales Ltd
    (1986) 1 All ER 772
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

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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, "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.