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ELRCAllowedApplication dated 8th October 2018· [2019] KEELRC 2172 (KLR)

Purity Wanjiku Migwi (suing as the legal Representative of the estate of Julius Kariuki Ndichu v Valentine Atenya Mutoko [2019] KEELRC 2172 (KLR)

Employment and Labour Relations Court
26 February 2019
NMNzioki wa Makau
329 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court gave an employer a second chance to defend an employee claim—but only after paying costs and filing its defence within 7 days.

What this practically means

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Executive summary

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This was an application dated 8th October 2018 in which the Respondent sought leave to defend a suit before the Employment and Labour Relations Court at Nyeri. The Respondent had failed to file a defence in time after being served, and the suit was slated to proceed as an undefended cause. The Claimant opposed the application. The court, per Nzioki wa Makau J, applied the principles in Patel v East Africa Cargo Services [1974] EA 75, holding that the court's main concern is to do justice to the parties and that it will not fetter its wide discretion under the rules; however, where a regular judgment has been entered, it will not usually be set aside unless the court is satisfied there is a defence on the merits. The court considered that the matter had not yet proceeded to formal proof and that the draft memorandum of reply raised triable issues, principally whether the deceased was an employee of the Respondent. On that basis the court set aside the default judgment on terms: the Respondent was to file its defence and witness statements within 7 days and pay thrown away costs of Kshs. 10,000/- to the Claimant within the same period, failing which the matter would proceed as an undefended cause. The application thus succeeded, with the relief granted conditionally rather than unconditionally.

Key legal issues

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01

Whether there is a triable defence justifying setting aside the default judgment

Holding

The draft memorandum of reply raises triable issues, including whether the deceased was an employee of the Respondent, so default judgment was set aside on terms

Reasoning

The court applied the test in Patel v East Africa Cargo Services that the overriding concern is doing justice between the parties. Since a regular judgment was in place, setting aside required satisfaction that a defence on the merits exists. The draft memorandum of reply raised triable issues, notably whether the deceased was the Respondent's employee, warranting leave to defend on conditional terms.

p. 2

Legal principles established

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  • A regular judgment will not usually be set aside unless the court is satisfied there is a defence on the merits

Court orders

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  1. 1.Set aside the default judgment entered against the Respondent
  2. 2.Respondent to file the defence and witness statements within 7 days
  3. 3.Respondent to pay thrown away costs to the Claimant assessed at Kshs. 10,000/- within 7 days
  4. 4.In default of compliance, the matter to proceed as an undefended cause

Authorities

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Cases cited (1)

  • Patel v East Africa Cargo Services
    [1974] EA 75
Jurisdiction invoked
Inherent discretion under the court's rules to set aside default judgment on just terms

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, "Purity Wanjiku Migwi (suing as the legal Representative of the estate of Julius Kariuki Ndichu v Valentine Atenya Mutoko [2019] KEELRC 2172 (KLR)", Case Analysis (2019). Application dated 8th October 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2172/eng@2019-02-26

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