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ELRCAllowedCause No. 638 of 2017· [2020] KEELRC 222 (KLR)

Jeremy Kirimi Rithaa v Technical University of Kenya [2020] KEELRC 222 (KLR)

Employment and Labour Relations Court of Kenya
11 November 2020
HWHellen S. Wasilwa
2,512 words in judgment
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The bottom line

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Kenya's Employment Court set aside a default judgment against the Technical University because its defence raised genuine issues, but ordered it to pay costs and proceed to hearing promptly.

What this practically means

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Executive summary

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The Respondent, the Technical University of Kenya, filed a Notice of Motion dated 11th March 2020 seeking to set aside an ex-parte judgment delivered on 20th January 2020, leave to file its defence out of time, and interim stay of execution. The Respondent, through the Federation of Kenya Employers, explained that its failure to file a defence within the 21 days directed by Abuodha J on 13/7/2017 was due to lack of instructions, and that it was not served with mention, hearing or judgment notices before the matter proceeded undefended on 14/10/2019. The Claimant opposed the application, contending that the Court's order of 13/7/2017 remained unchallenged, that the application was an abuse of process intended to delay enjoyment of the fruits of judgment, and that the draft defence raised no triable issues. Both parties filed submissions. Applying Rule 13(5) of the ELRC Rules 2016 and the test in Patel v E.A Cargo Handling Services Limited, the Court held that although the Respondent was guilty of laches in failing to file a defence for over two years, the draft defence raised a triable issue concerning the Claimant's conduct as a Lecturer warranting his dismissal. The Court allowed the application and set aside the ex-parte judgment on conditions: the Respondent to pay the Claimant thrown away costs of Kshs.100,000 within 30 days and to set down the case for hearing within 90 days, failing which the orders would be vacated and execution would proceed. Judgment delivered on 11th November 2020.

Key legal issues

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01

Whether the ex-parte judgment should be set aside despite the Respondent's failure to file a defence as directed

Holding

The Court allowed the application because the draft defence raised triable issues, notwithstanding the Respondent's own laches

Reasoning

The Court found that the Respondent had been given 21 days on 13/7/2017 to file a defence with a rider that default would lead to the suit proceeding undefended, and no defence was filed for over two years. However, the draft defence raised issues about the Claimant's conduct as a Lecturer warranting dismissal, which the Court found to be a triable issue that the Respondent should be given a chance to ventilate, exercising its discretion in favour of a hearing on the merits.

p. 3
02

The applicable test for setting aside a regular judgment

Holding

The Court applied the Patel v E.A Cargo Handling test that the main concern is to do justice and that a regular judgment will not usually be set aside unless there is a defence on the merits raising a triable issue

Reasoning

Relying on Sir Duffus in Patel v E.A Cargo Handling Services Limited, the Court held that the Court's main concern is to do justice to the parties and it will not impose conditions on itself to fetter its wide discretion. A defence on the merits does not mean a defence that must succeed, but a triable issue raising a prima facie defence that should go to trial for adjudication.

p. 3

Legal principles established

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  • Where a judgment is regular, the Court will not usually set it aside unless satisfied there is a defence on the merits, meaning a triable issue, not a defence that must succeed
  • The Court has power under Rule 13(5) of the ELRC Rules 2016 to extend time for responding to pleadings and to set aside or vary a judgment or order on such terms as it deems fit

Court orders

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  1. 1.Ex-parte judgment set aside with all consequential orders
  2. 2.Respondent to pay claimant thrown away costs of Kshs.100,000 within 30 days
  3. 3.Case to be set down for hearing within 90 days
  4. 4.In default, the orders to be vacated and execution to proceed

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 13(5)
  • Employment and Labour Relations Court (Procedures) Rules 2016Rule 22
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 50
  • Employment ActSection 44(3) and 44(4)(a)
  • Advocates Actnot specified

Cases cited (6)

  • Stephen Wanyoike Kinuthia (Suing on behalf of John Kinuthia Marega (deceased) v Kariuki Marega SC another
    [2018] eKLR
  • Sugow Aden Abdi v Kamil Dagane Abdi & another
    [2017] eKLR
  • Toshike Construction Company Limited v Harambee Co-operative Savings & another
    [2019] eKLR
  • Sebei District Administration vs Gasyali
    (1968) EA 300
  • Winnie Wambui Kibinge & 12 Others v Match Electricals Limited
    [2012] eKLR
  • Patel vs E.A Cargo Handling Services Limited
    (1974) E.A page 75
Jurisdiction invoked
Rule 13(5) of the Employment and Labour Relations Court (Procedure) Rules 2016 and the Court's inherent power to set aside or vary a judgment or order

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, "Jeremy Kirimi Rithaa v Technical University of Kenya [2020] KEELRC 222 (KLR)", Case Analysis (2020). Cause No. 638 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/222/eng@2020-11-11

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