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ELRCAllowedCause No. 1117 of 2016· [2020] KEELRC 1087 (KLR)

Daniel Malaba Adoga v Mohamed Muzeur Shazad t/a Shazad Enterprises [2020] KEELRC 1087 (KLR)

Employment and Labour Relations Court
15 May 2020
1,147 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court threw out a default judgment because the process server's affidavits looked suspiciously identical, giving the respondent a fresh chance to defend the case.

What this practically means

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Executive summary

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This is a ruling on the respondent's notice of motion dated 19th November 2019 seeking stay of execution, setting aside of the ex-parte judgment dated 11th October 2019 delivered in its absence, cross-examination of the claimant's process server Joseph Romino Adede, and leave to file a defence. The respondent argued it was never served with summons, claim, mention or hearing notices, and only learned of the judgment on 14th October 2019 through an online search. The claimant, Daniel Malaba Adoga, opposed, maintaining the judgment was regular as the respondent was properly served. Adopting the test in Shah v Mbogo [1967] EA 116, Maureen Onyango J examined the four affidavits of service and found them suspiciously similar: in each, the process server stated he was accompanied by the claimant and introduced to the respondent, Mr Mohamed Muzeur, even for later services of hearing notices and submissions. The court held it was illogical that the process server would need accompaniment and introduction at each service after the first, and gave the respondent the benefit of doubt that no service was effected. The court set aside the proceedings and judgment and granted the respondent leave to file and serve a defence with documents and witness statements within 21 days. Costs were ordered to be in the cause. The ruling was delivered virtually under COVID-19 directions, guided by Articles 159(2)(d) and 48 of the Constitution and Section 1B of the Civil Procedure Act.

Key legal issues

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01

Whether service was effected on the respondent, justifying setting aside the ex-parte judgment

Holding

The court gave the respondent the benefit of doubt that no service was effected, and set aside the proceedings and judgment, granting leave to file a defence.

Reasoning

The four affidavits of service sworn by the same process server were near-identical, each stating that the claimant accompanied him and introduced him to the respondent. The court found it illogical that a process server would need to be accompanied and introduced at each subsequent service after the first. This similarity raised doubt about the veracity of the affidavits, warranting exercise of discretion in favour of the respondent.

p. 2
02

The test for setting aside default judgment

Holding

The court adopted the test in Shah v Mbogo: the discretion is limitless but must be exercised justly, to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction.

Reasoning

Applying Shah v Mbogo [1967] EA 116, the court held that the discretion to set aside default judgment should be based on terms as may be just, with the main concern being to do justice to the parties, and is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error.

p. 2

Legal principles established

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  • Courts have an unfettered discretion to set aside default judgments provided there are justifiable reasons, the discretion being exercised to do justice and to avoid injustice, but not to assist a party who deliberately sought to obstruct or delay justice.

Court orders

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  1. 1.Set aside the proceedings and the ex-parte judgment dated 11th October 2019 and all consequential orders premised thereon
  2. 2.Granted the applicant leave to file and serve a defence together with all relevant documents and witness statement within 21 days from the date of delivery of the orders
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (1)

  • Shah v Mbogo
    [1967] EA 116
Jurisdiction invoked
Inherent discretion to set aside ex-parte/default judgment; Article 159(2)(d) and Article 48 of the Constitution and Section 1B of the Civil Procedure Act invoked for virtual delivery of the ruling

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, "Daniel Malaba Adoga v Mohamed Muzeur Shazad t/a Shazad Enterprises [2020] KEELRC 1087 (KLR)", Case Analysis (2020). Cause No. 1117 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1087/eng@2020-05-15

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