Daniel Malaba Adoga v Mohamed Muzeur Shazad t/a Shazad Enterprises [2020] KEELRC 1087 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether service was effected on the respondent, justifying setting aside the ex-parte judgment
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.
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.
The test for setting aside default judgment
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.
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.
Legal principles established
#- 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
#- 1.Set aside the proceedings and the ex-parte judgment dated 11th October 2019 and all consequential orders premised thereon
- 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.Costs of the application shall be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.