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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 320 (KLR)

Everlyn Cherotich Maiyo v Kenya Commercial Bank Limited & another [2020] KEELRC 320 (KLR)

Employment and Labour Relations Court
22 October 2020
OMONESMUS N MAKAU
1,803 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court let a bank defend an employee's lawsuit despite late filing, but made it pay the employee's wasted costs of Kshs. 20,000.

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 (Makau J) on the applicant bank's Notice of Motion dated 27 May 2020 seeking to set aside directions issued on 4 March 2020 that the claimant's suit proceed by formal proof, and to enlarge time by 14 days to file a Response to the Memorandum of Claim. The applicant, having entered appearance but failed to file a defence, attributed the default to delays in securing information from its Kitale branch and annexed a draft defence said to raise triable issues. The respondent opposed, contending there was no sufficient cause, that the applicant was a large bank with good information systems, that the application came after an unreasonable delay of over eight months, and that she had suffered loss attending court from Kitale while unemployed. The court applied the settled thresholds in James Kanyiita Nderitu, Patel v East Africa Cargo Handling Services, Shah v Mbogo, Wachira Karani and Parimal v Veena Bharti, holding that the applicant must show the default was not wilful and that sufficient cause is a question of fact. Although the court found the delay unexplained and unreasonable, it held the draft defence raised triable issues — including whether the respondent resigned voluntarily or was constructively dismissed and whether she suffered sexual harassment — and that the applicant would suffer irreparable harm if condemned unheard, while the respondent could be compensated by costs. The application was allowed with thrown-away costs of Kshs. 20,000 payable within 14 days, in default of which execution was permitted.

Key legal issues

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01

Whether the applicant showed sufficient cause to set aside the formal-proof directions and extend time to file a defence

Holding

The application was allowed despite unexplained delay because the draft defence raised triable issues and the prejudice balance favoured a hearing on the merits, subject to thrown-away costs.

Reasoning

The court found the explanation for the failure to file a defence — delay in obtaining information from the Kitale branch — inadequately explained, and the further three-month delay in moving the court unreasonable. However, the draft defence was not frivolous and raised triable issues (voluntary resignation versus constructive dismissal, sexual harassment, entitlement to reliefs). The applicant would suffer irreparable harm if condemned without a hearing, while the respondent could be compensated by costs.

p. 2
02

Whether the intended defence raises triable issues warranting inter-partes ventilation

Holding

Yes — the draft defence raised triable issues best canvassed through an inter-partes hearing.

Reasoning

The court examined the draft defence and identified contested issues: whether the respondent voluntarily resigned or was constructively dismissed; whether she was a victim of sexual harassment by the 2nd respondent; and whether she is entitled to the reliefs sought. These serious allegations required ventilation rather than determination by formal proof.

p. 2

Legal principles established

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  • Setting aside of a judgment or court order is not a matter of cause but requires demonstration that the default was not occasioned by wilful negligence; the applicant must establish sufficient cause by affidavit evidence.
  • Sufficient cause is a question of fact with no straight-jacket formula; the defendant must show he was prevented from attending court or complying by sufficient cause.
  • A defence on the merits means a triable issue, not a defence that must succeed.

Court orders

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  1. 1.The directions by the court issued on 4.3.2020 that the matter proceeds by way of formal proof be and is hereby set aside.
  2. 2.The Applicant has 14 days hereof to file and serve Response to the Memorandum of Claim herein.
  3. 3.The Applicant is condemned to pay thrown-away costs of Kshs. 20,000 within 14 days and in default leave is hereby granted her to execute for the said costs.

Authorities

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Legislation

  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • James Kanyiita Nderitu & another v Mario Philotas Ghikas & another
    [2017] eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Martha Wangari Karua v IEBC
    Nyeri Civil Appeal No.1 of 2017
  • Patel v East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • Shah v Mbogo and Another
    [1967] EA 116
  • Parimal vs Veena Bharti
    Civil Appeal 1467 of 2011 (2011)
Jurisdiction invoked
Original employment and labour relations jurisdiction; discretion to set aside court orders and extend time under the ELRC Procedure Rules

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, "Everlyn Cherotich Maiyo v Kenya Commercial Bank Limited & another [2020] KEELRC 320 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/320/eng@2020-10-22

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