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ELRCDismissedNot stated in the extract· [2020] KEELRC 354 (KLR)

Caroline Masika v Parapet Limited Services [2020] KEELRC 354 (KLR)

Employment and Labour Relations Court
8 October 2020
4,016 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Parapet Limited, the Respondent/Applicant before the Employment and Labour Relations Court, moved the court by Notice of Motion dated 24th June 2020 seeking stay of execution of a judgment and decree delivered on 15th April 2020 awarding the Claimant Kshs. 4,298,000.00 plus interest, and further seeking setting aside of the judgment, leave to file a Statement of Response, and reopening of the suit for hearing de novo. The Applicant contended it was never served with pre-trial, hearing, judgment or entry-of-judgment notices, blamed its counsel's inadvertence for failure to file a defence, and relied on its constitutional right to a fair hearing, offering to deposit 30% of the decretal amount as security. The Claimant opposed, asserting service of the Memorandum of Claim on 12th April 2019 and of mention notices, which the Applicant's representative declined to acknowledge; she argued the application was an afterthought brought in bad faith and that the draft defence raised no triable issues. The court examined the record and found evidence of service of pleadings and a mention notice, and that the matter proceeded to formal proof and judgment after the Applicant failed to attend. The court held the Applicant was not interested in pursuing the case, found no evidence it had instructed counsel, observed that it was forum shopping by simultaneously filing a Notice of Appeal and seeking to reopen the suit, and advised it to pursue the appeal in the Court of Appeal. The application was dismissed with costs to abide the appeal.

Key legal issues

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01

Whether the Applicant was served with the Memorandum of Claim and subsequent notices

Holding

Service was duly effected; the claim that the Applicant was unaware of proceedings was untrue

Reasoning

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.

p. 5
02

Whether the judgment should be set aside and the suit reopened for hearing de novo

Holding

The application to set aside was refused; the Applicant showed no vigilance and did not even demonstrate it had instructed counsel

Reasoning

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.

p. 5
03

Whether stay of execution pending appeal should be granted

Holding

Refused; the Applicant's inconsistent remedies (appeal plus application to reopen) amounted to forum shopping

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 24th June 2020 is dismissed
  2. 2.Costs to abide the Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(k)
  • Court of Appeal Rules, 2010Rule 77(1)

Cases cited (12)

  • Rhoda Mukuma vs John Abuoga
    (1988) eKLR
  • Edward Kamau & another v Hannah Mukui Gichuki & another
    120157 eKLR
  • National Industrial Credit Bank Ltd vs Aquinas Francis Wasike
    Court of Appeal Civil Application No. 238/2005
  • G.N. Muema P/A (Sic) Mt View Maternity & Nursing Home v Miriam Maalim Bishar & another
    [2018] eKLR
  • Brigadier Okoki Ndindi vs. Standard Group Limited
    HCCC 518 of 2010 (Unreported)
  • Arun C Sharma v Ashana Raikundalia T/A Rairundalia & Co. Advocates
  • Ceneast Airlines Ltd vs Kenya Shell Ltd
    [2000] 2EA
  • Patel vs EA Cargo Handling Services
    [1974] EA 75
  • Simba Coach Limited vs Kiriiyu Merchants Auctioneers
    Kakamega Civil Appeal No. 137 of 2018
  • Jaber Mohsen Ali & Another vs. Priscillah Boit & Another
    E&L No. 200 of 2012 (2014) eKLR
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret E&LC 919 of 2012
  • Agapetus Nyongesa Masinde vs Board of Management, Bungoma High School
    ELRC Bungoma Cause No. 96 of 2017
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

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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, "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.