Christine Katunge Kitale v Statpack Industries Limited [2020] KEELRC 192 (KLR)
The bottom line
#A Kenyan employment court set aside a default judgment so a case could be heard properly, but the employer had to pay Kshs.50,000 and act fast.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for review/setting aside was met
The court found the review threshold unmet but nevertheless set aside the judgment to allow the matter be heard on its merits, conditioned on thrown away costs
The court observed that the respondent was duly served with the Memorandum of Claim, the application for interlocutory judgment and the hearing notice, and failed to participate. The respondent did not demonstrate any error on the record or discovery of new matter to warrant review, nor vigilance over its cause. However, since the respondent was desirous of defending the case, the court allowed the setting aside so justice could be served, with thrown away costs of Kshs.50,000/= and an obligation to fix the case for hearing within 90 days, failing which the judgment would be reinstated.
Whether the judgment was a default judgment
The record shows the claim proceeded undefended after service, with judgment delivered on 21st May 2020
The claimant deponed that the matter proceeded to formal proof on 6th February 2020 after proper service, so the judgment was on merit and regular; the applicant characterised it as a default judgment. The court recorded that the claim proceeded undefended for hearing and judgment was delivered on 21/5/2020, with notice served on 17/6/2020. The court did not make an express finding resolving this characterisation, treating the application instead on review/set-aside principles.
Legal principles established
#- A party seeking to set aside a default judgment must demonstrate an arguable case, but a court may set aside where both parties can be heard on the merits, subject to thrown away costs and a condition of expeditious prosecution
Court orders
#- 1.Application dated 29th July 2020 allowed and the judgment of 21st May 2020 set aside (referred to in the order as 'the judgement of 17th May, 2020')
- 2.Respondents to pay the Claimant's thrown away costs of Kshs.50,000/=
- 3.Case to be set down for hearing within 90 days; in default the judgment in place to be reinstated
- 4.Costs in the cause
- Jurisdiction invoked
- Section 16 of the Employment & Labour Relations Court Act; Rules 33 and 38 of the Employment & Labour Relations Court (Procedure) Rules, 2016; Order 10 rule 11 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christine Katunge Kitale v Statpack Industries Limited [2020] KEELRC 192 (KLR)", Case Analysis (2020). (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/192/eng@2020-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.