Kenya Building, Construction Timber and Furniture Industries Employees’ Union v Roads and Civil Engineering Contractors Association (RACECA) [2019] KEELRC 2357 (KLR)
The bottom line
#A Kenyan court refused to undo a default judgment against an employers' association that ignored court dates and denied a collective bargaining agreement it had spent years negotiating.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent established sufficient cause for its failure to file a defence and attend the hearing
The respondent had no valid reason for the delay in filing a defence or for failing to attend court; the delay in giving instructions to counsel and absence of its chairman did not constitute sufficient cause
The court examined the affidavits of Kirpal Singh Suri, which attributed the delay to inadvertence and the association's busy schedule, and gave no reason for non-attendance at the hearing. Given the respondent's long engagement with the CBA negotiations and post-judgment meetings, the court concluded the respondent's object throughout was to delay the case, not an excusable oversight.
Whether the draft defence raised triable issues
The draft defence was a sham: it denied the existence of a valid CBA and recognition agreement despite the respondent's long history of negotiating the CBA through counsel, minutes of meetings, correspondence and a conciliator's report recommending an effective date of 1st January 2017
Counsel for the respondent had written letters convening meetings to revise the CBA and objecting only to the start date; minutes of 19th June 2017 showed agreement on most issues including the effective date; and the conciliator's report confirmed negotiations were substantially concluded. The defence's blanket denial contradicted this documented history.
Whether there were orders of 12th November 2018 capable of being set aside
No orders were made on 12th November 2018; the judgment had been delivered on 12th October 2018 and on 12th November 2018 the case was only mentioned and a further mention date fixed, so those orders could not be stayed or set aside
The court noted the application was premised on setting aside orders of 12th November 2018 directing registration of the CBA, but the record showed no such orders were made on that date. The judgment was delivered on 12th October 2018, and the mention of 12th November 2018 only fixed a further mention date of 10th December 2018.
Legal principles established
#- Setting aside an ex parte judgment is a matter of judicial discretion exercised to do justice between the parties, and the court must consider the reason for failure to attend, the nature of the defence, and whether the plaintiff can be compensated by costs, since denying a litigant a hearing is a last resort
- For an ex parte judgment to be set aside the applicant must show either that it was not properly served with summons or that it failed to attend the hearing due to sufficient cause
- A litigant is generally bound by the acts and omissions of its advocate, but courts must guard against unjust results; a litigant ought not to bear the consequences of counsel's default unless privy to it or responsible for failing to give instructions
- A defence on the merits need not be a defence that must succeed; it suffices that it raises a triable issue
- 'Sufficient cause' requires that the party has not acted negligently or inactively, and the facts and circumstances must afford sufficient ground for judicious exercise of the court's discretion
Court orders
#- 1.The respondent's application dated 20th November 2018 dismissed
- 2.Costs of the application awarded to the claimant
- Jurisdiction invoked
- Inherent and review powers of the Industrial Court (Employment and Labour Relations Court) over its own proceedings; review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules; setting aside ex parte judgment under Order 12 Rule 7 and Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building, Construction Timber and Furniture Industries Employees’ Union v Roads and Civil Engineering Contractors Association (RACECA) [2019] KEELRC 2357 (KLR)", Case Analysis (2019). Not stated in the excerpt (application dated 20th November 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2357/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.