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ELRCPartially AllowedNot stated in the judgment text· [2020] KEELRC 28 (KLR)

Christopher Garo Nyawade v H. Young & Company (E.A.) Limited [2020] KEELRC 28 (KLR)

Employment and Labour Relations Court
17 December 2020
2,239 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court set aside an ex parte judgment because the employer missed the hearing through her lawyer's clerical mistake, not deliberate neglect, allowing the defence to be heard.

What this practically means

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Executive summary

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This was a ruling by the Employment and Labour Relations Court at Nairobi on the Respondent's Notice of Motion dated 22.7.2020 seeking to set aside an ex parte judgment delivered on 29.4.2020 in an employment dispute, to re-open the proceedings, and to be allowed to cross-examine the Claimant, call witnesses and file substituted witness statements. The Applicant explained that her advocate's secretary received the hearing notice but failed to diarize it, so counsel and the defence witnesses did not attend the hearing. The Claimant opposed, arguing that service had been admitted, that the judgment was procedurally obtained, that the defence had been dismissed for want of prosecution, and that the application was a delay tactic. The court framed two issues: whether the threshold for setting aside a regular judgment was met, and whether the judgment should be set aside. Applying Shah v Mbogo, Patel v East Africa Cargo Handling Services and related authorities, the court distilled five conditions and held that although there was negligence in counsel's office, the litigant herself was not negligent; her defence raised triable issues; the application was made without unreasonable delay; and the prejudice to her outweighed the Claimant's, which costs could remedy. The court allowed the application: the judgment of 29.4.2020 was set aside, the hearing re-opened, leave granted to cross-examine and call witnesses and file substituted witness statements, with throw away costs of Kshs. 15,000 to the Claimant.

Key legal issues

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01

Whether the Applicant met the threshold for setting aside a regular judgment

Holding

Yes. Although there was negligence in counsel's office, the applicant herself was not negligent; her defence raises triable issues, the application was filed promptly, and her prejudice outweighs the claimant's, which costs can remedy.

Reasoning

The court synthesised Shah v Mbogo, Patel v East Africa Cargo Handling and related authorities into five conditions: non-deliberate non-attendance, promptness, arguable defence, balance of prejudice and interests of justice. It found the secretary's failure to diarize the hearing notice, though constituting office negligence, was not the litigant's negligence; no affidavit from the secretary or diary was produced, but the court was still satisfied. The defence denying unfair termination and asserting valid reason and fair procedure raised prima facie triable issues.

p. 3
02

Whether the judgment of 29.4.2020 should be set aside and the hearing re-opened

Holding

Yes. The judgment was set aside, the hearing re-opened, and leave granted to cross-examine the Claimant, call witnesses and file substituted witness statements, on terms of throw away costs.

Reasoning

The court found the application was made without unreasonable delay (letter of 20.7.2020 notifying judgment, application filed 22.7.2020), and that denying the respondent a chance to prosecute her defence in a 5-year suit would be more prejudicial and irreparable than the claimant's prejudice, which costs would adequately remedy.

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Legal principles established

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  • To set aside a regular judgment the applicant must show non-attendance due to inadvertence or honest mistake rather than deliberate neglect, absence of unreasonable delay, an arguable defence raising triable issues, greater prejudice, and that the interests of justice demand the setting aside.
  • A counsel's or counsel's office's mistake may warrant setting aside a regular judgment where the litigant has an arguable defence, so that the party gets his day in court.
  • Prejudice to a claimant from setting aside a regular judgment can be adequately remedied by costs.

Court orders

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  1. 1.The judgment delivered on 29.4.2020 is set aside and the hearing is re-opened
  2. 2.Leave granted to the Applicant to cross examine the Claimant and to call her witnesses
  3. 3.Leave granted to the Applicant to file substituted witness statements
  4. 4.The Applicant is condemned to pay Kshs. 15,000 as throw away costs to the Claimant
Jurisdiction invoked
Articles 48, 50 and 159 of the Constitution and sections 3 and 16 of the Employment and Labour Relations Court Act (as invoked by the Applicant); inherent discretion to set aside a regular judgment

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, "Christopher Garo Nyawade v H. Young & Company (E.A.) Limited [2020] KEELRC 28 (KLR)", Case Analysis (2020). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/28/eng@2020-12-17

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