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ELRCDismissedNot stated in the judgment· [2019] KEELRC 2144 (KLR)

Wambua Mutua v Software Technologies Limited [2019] KEELRC 2144 (KLR)

Employment and Labour Relations Court
22 February 2019
MOMaureen Onyango
2,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that ignored an employee's lawsuit for over a year lost its bid to reopen the case and must pay the judgment plus legal costs.

What this practically means

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Executive summary

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The Defendant/Applicant, Software Technologies Limited, moved the court by Notice of Motion dated 18th May 2018 seeking stay of execution of parts of a judgment delivered on 20th April 2018 (salary arrears of Kshs.314,208/- and leave days valued at Kshs.388,500/-), setting aside of those parts of the judgment, and leave to file a defence out of time. The application, brought under Article 50 of the Constitution and Orders 10, 22, 45 and 51 of the Civil Procedure Rules, 2010, was premised on the allegation that the applicant's former advocate inadvertently failed to file a defence, and that the Claimant/Respondent had failed to present the correct factual position on salary arrears and leave days. The Claimant opposed, contending that the applicant was duly served, entered appearance on 30th November 2016, and deliberately or negligently failed to file a defence, and that the application was an abuse of process designed to delay the fruits of the judgment. The parties filed written submissions. The court framed a single issue: whether the application dated 18th May 2018 was merited. Applying Order 10 Rule 11 and the Patel v E.A Cargo Handling Services line of authority, the court held that although its discretion to set aside default judgment is wide, the applicant had shown no sufficient reason for failing to file a defence between the filing of the memorandum of appearance on 30th November 2016 and the mention of 19th July 2017, when the file was certified to proceed to formal proof in the applicant's presence. The application also contained no prayer to set aside those formal-proof orders, so even setting aside the judgment would not permit a defence. On the documents, the applicant had no viable defence: the only discrepancy concerned a recovery of three months' salary in lieu of notice, for which no counter-claim or demand notice was exhibited. The application was dismissed with costs.

Key legal issues

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Whether the default judgment of 20th April 2018 should be set aside and leave granted to file a defence out of time

Holding

The application was dismissed; the applicant failed to show sufficient reason for the failure to file a defence and had no valid defence to the claim.

Reasoning

The court noted the applicant was properly served and entered appearance on 30th November 2016 but never filed a defence. The matter was fixed for hearing on 19th July 2017 in the applicant's presence, when the court certified it to proceed to formal proof. The applicant could have applied then to set aside those orders but did not, and the application contained no prayer to set them aside. On the documents, the respondent was in arrears of salary of Kshs.748,941 and the only difference in tabulation was a recovery of three months' salary in lieu of notice, for which no draft defence, counter-claim or demand notice was exhibited. Granting the orders would thus be a mere academic exercise.

p. 4

Legal principles established

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  • The court has an unfettered discretion under Order 10 Rule 11 to set aside or vary default judgment, but where the judgment is regular it will not usually be set aside unless there is a defence on the merits.

Court orders

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  1. 1.The application dated 18th May 2018 is dismissed
  2. 2.Costs of the application to the Claimant/Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Civil Procedure Rules, 2010Order 10 Rule 11
  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Civil Procedure Rules, 2010Orders 51, 52, 53 and 54
  • Civil Procedure Rules, 2010Order 45 Rules 1 & 2
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (6)

  • Patel Vs E.A Carge Handling Services Limited
    (1974) EA 75
  • Shah Vs Mbogo
    (1967) E.A 166
  • Philip Chemwolo & Another Vs Augustine Kubede
    (1982-88) KAR 103
  • Mbaki & Others Vs Macharia & Another
    (2005) 2 E.A 206
  • JMK vs MWM and Another
    (2015) eKLR
  • Shanzu Investment Ltd vs. The Commissioner of Lands
    Civil Appeal No. 100 of 1993 [1993] eKLR
Jurisdiction invoked
Article 50 of the Constitution of Kenya and Order 10 Rule 11, Order 22 Rule 22, Order 45 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Wambua Mutua v Software Technologies Limited [2019] KEELRC 2144 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2144/eng@2019-02-22

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