Jared Nyamweya Matuna v Kabansora Millers Limited [2020] KEELRC 1069 (KLR)
The bottom line
#A Kenyan employer that ignored court notices lost its chance to defend an employment claim, because courts only reopen default judgments when the mistake is genuinely excusable.
What this practically means
#Executive summary
#Key legal issues
#Awareness of proceedings as the determinative question in setting aside ex-parte judgment
The Court held the Respondent and its advocate were aware of the Cause's progression; notices were served and the Respondent did not deny receipt or explain its silence.
The Claimant exhibited postal records showing service of mention and hearing notices directly on the Respondent, and the Respondent had also been engaged through the Ministry of Labour. The Respondent offered no explanation for failing to bring the notices to its advocate's attention or for its silence to the Ministry's demands, undermining its claim of inadvertence or mistake by its clerk.
Exercise of discretion where the litigant lacks diligence
Discretion was declined because the Respondent was not diligent, and denying a litigant a hearing is a last resort given the Respondent's conduct.
The Court applied established principles that the discretion to set aside is intended to relieve against accident, inadvertence or excusable mistake, not to reward evasion or delay. Considering the nature of the action, the notices served, the Respondent's unexplained silence and the claimant's entitlement not to be kept from the fruits of judgment, the Court found the mistake was not excusable.
Whether the proposed defence justified setting aside
The principal proposed defence (challenge to service pay award) did not warrant setting aside; any error could be cured through review.
The Court examined the draft defence and found its main plank was that the Claimant was not entitled to some reliefs such as service pay. That challenge went to the award rather than liability and could, if at all, be addressed through the review jurisdiction, so it did not disclose a defence necessitating reopening the hearing.
Legal principles established
#- The discretion to set aside ex-parte proceedings is free and is exercised to do justice, to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a litigant who deliberately obstructed or delayed justice.
- A litigant who was aware of the progression of a cause but did not act diligently cannot invoke the court's discretion to set aside ex-parte judgment.
Court orders
#- 1.The Respondent's application dated 19 February 2020 seeking stay of execution and setting aside of the ex-parte judgment is dismissed
- 2.Costs of the application awarded to the Claimant
- Jurisdiction invoked
- Undefended Cause; the Respondent's application under a certificate of urgency for stay of execution and setting aside of ex-parte judgment and decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jared Nyamweya Matuna v Kabansora Millers Limited [2020] KEELRC 1069 (KLR)", Case Analysis (2020). Not stated in the judgment extract (Cause, Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1069/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.