Caroline Masika v Parapet Limited Services [2020] KEELRC 354 (KLR)
The bottom line
#The Employment and Labour Relations Court refused to overturn a Kshs 4.3 million judgment against Parapet Limited because the company ignored served court documents and then tried two conflicting legal routes at once.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant was served with the Memorandum of Claim and subsequent notices
Service was duly effected; the claim that the Applicant was unaware of proceedings was untrue
The court examined the record, noting a stamped copy of the Memorandum of Claim and an Affidavit of Service showing service on 12/4/2019, plus service of a mention notice on 12/6/2019. The matter proceeded to formal proof after the Respondent failed to attend pre-trial. The court found the contention of non-service untrue.
Whether the judgment should be set aside and the suit reopened for hearing de novo
The application to set aside was refused; the Applicant showed no vigilance and did not even demonstrate it had instructed counsel
The court found that all pleadings and notices were served personally on the Applicant, which showed disinterest in the case. The claim that counsel was to blame was unsupported by evidence of instructions. Having chosen not to participate, the Applicant could not seek to reopen the suit, and the application lacked merit.
Whether stay of execution pending appeal should be granted
Refused; the Applicant's inconsistent remedies (appeal plus application to reopen) amounted to forum shopping
The court noted the Applicant had filed a Notice of Appeal while simultaneously seeking leave to file a defence and reopening of the suit. The court found the Applicant appeared to be forum shopping and unaware of what it sought, and directed it to pursue its appeal and any further orders before the Court of Appeal.
Legal principles established
#- A party served with pleadings who fails to enter appearance or attend court is taken not to be interested in pursuing the case and cannot later seek to be heard
- A litigant cannot simultaneously pursue an appeal and seek to reopen the same suit; it must elect one path
Court orders
#- 1.The Notice of Motion application dated 24th June 2020 is dismissed
- 2.Costs to abide the Appeal
- Jurisdiction invoked
- Inherent jurisdiction of the ELRC under its Rules and Order 42 Rule 6(2) of the Civil Procedure Rules (invoked by the parties); no specific constitutional/statutory basis stated by the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Caroline Masika v Parapet Limited Services [2020] KEELRC 354 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/354/eng@2020-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.