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ELRCDismissedNot stated in judgment· [2019] KEELRC 2252 (KLR)

Merry Mukiria v Methodist Church in Kenya Trustees Registered & Another [2019] KEELRC 2252 (KLR)

Employment and Labour Relations Court
19 February 2019
NMNzioki wa Makau
504 words in judgment
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The bottom line

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A Kenyan employment court refused to undo a default judgment because the employer showed no genuine defence and could not deny being served.

What this practically means

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Executive summary

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The court, per Nzioki wa Makau J at Nyeri, determined the Respondents' notice of motion dated 15th November 2018 seeking to set aside the decision of 9th October 2018 and for leave to defend the suit. The suit had proceeded undefended, and the Respondents asserted they were never served with the suit papers and only learnt of the matter at execution stage; they claimed a viable prima facie defence and no inordinate delay in moving the court. The Claimant opposed, averring that service was properly effected on the same person who had always been served and who habitually declined to acknowledge receipt, and that the application was a delaying tactic; she sought, in the alternative, that any decretal sum be deposited in an interest-earning account in the joint names of the advocates. Applying Patel v E.A. Cargo Handling Services Ltd, the court held that a regular judgment will not ordinarily be set aside unless a defence on the merits - a triable issue - is demonstrated. The draft defence disclosed no triable issue, and the Respondents had been served in the same fashion as before, including with the decree they sought to set aside. The Chairman's repeated refusal to acknowledge service was at the Respondents' peril. The court declined to exercise its discretion in their favour, dismissed the application with costs to the Claimant, and directed that execution may proceed.

Key legal issues

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01

Whether to set aside a regular judgment entered after service

Holding

The application was dismissed because the draft defence raised no triable issue and service on the Respondents was established

Reasoning

The court adopted the Patel test that a regular judgment will only be set aside where a defence on the merits, meaning a triable issue, is shown. On analysis the draft defence disclosed no triable issue. The Respondents had been served in the same manner as previously, with the Chairman repeatedly declining to acknowledge receipt, so they could not claim ignorance of the proceedings. Their conduct made them undeserving of the discretionary relief.

p. 2

Legal principles established

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  • A regular judgment will not be set aside unless the applicant demonstrates a defence on the merits, i.e. a triable issue raising a prima facie defence

Court orders

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  1. 1.The Respondents' notice of motion dated 15th November 2018 is dismissed
  2. 2.Costs of the application awarded to the Claimant
  3. 3.Execution may proceed

Authorities

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Cases cited (1)

  • Patel v E. A. Cargo Handling Services Ltd
    [1974] E.A. 75
Jurisdiction invoked
Inherent discretion under the court's rules to set aside judgment (application by notice of motion)

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, "Merry Mukiria v Methodist Church in Kenya Trustees Registered & Another [2019] KEELRC 2252 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2252/eng@2019-02-19

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