Francis Mwangi Chege v Shepherd Cateringlimited [2020] KEELRC 390 (KLR)
The bottom line
#A Kenyan employment court refused to undo a default judgment because the employer's lawyers failed to diligently track their own case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court should exercise its discretion under Order 10 Rule 11 to set aside the default judgment
The application was dismissed; the Applicant failed to demonstrate diligence or sufficient reason for non-attendance, having been served with the hearing notice on 10th June 2019 and a judgment notice on 11th November 2019
The Court noted the suit was filed in 2015, appearance entered and defence filed, but the Applicant's advocates failed to attend the hearing despite receiving a hearing notice four months in advance. The explanation of an advocate's departure from the firm and a diary failure did not excuse the Managing Partner's lack of diligence. Given the age of the matter and the Claimant's diligence, reopening would prejudice the Claimant.
Whether mistakes of an advocate should be visited upon an innocent litigant
The principle was rejected on the facts because there was no adequate explanation of diligence by the firm after the departure of the counsel in conduct of the matter
The Applicant relied on authority that a litigant should not be punished for counsel's mistakes. The Court accepted the communication lapse may be true but held that equity aids the diligent and found no explanation why the Managing Partner did not update the firm's diary after the counsel left, so the innocent-litigant principle did not avail the Applicant.
Legal principles established
#- Equity aids the diligent, and a party who has not diligently prosecuted or defended its case cannot invoke the Court's discretion to set aside a default judgment
- Litigation must come to an end, particularly in old matters
Court orders
#- 1.The Notice of Motion application dated 13th February 2020 seeking to set aside the default judgment is dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Order 10 Rule 11 and Order 51 Rules 1 and 13(2) of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Mwangi Chege v Shepherd Cateringlimited [2020] KEELRC 390 (KLR)", Case Analysis (2020). Cause No 1418 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/390/eng@2020-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.