Mary Emily Atieno v Rajkumar S Patil & another [2021] KEELRC 256 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether service was proper despite the application having been received by the respondent's secretary
Service was proper - the secretary accepted service, but the limited time to respond breached the respondents' right of reply
The claimant demonstrated the process server's copy was stamped by the secretary, and Mr Patil confirmed the application was on his desk by 4th December 2020. However, only 2 clear days were allowed before hearing, contrary to Rule 17 read with Rules 13 and 14 of the ELRC Procedure Rules, 2016, which require at least 14 days for reply absent exceptional circumstances.
Whether the ex parte interlocutory judgment should be set aside
Yes - set aside so the claim may be heard on the merits, as the claimant showed no prejudice
The court's discretion to set aside ex parte judgments is aimed at avoiding injustice from inadvertence or excusable error. The application to set aside was filed without delay, and the claimant did not state what prejudice she would suffer if the respondent were heard. Doing justice required that the respondents be allowed to file a defence and respond to the application, and the claim be heard on the merits.
Legal principles established
#- The discretion to set aside ex parte judgment exists to avoid injustice from accident, inadvertence or excusable error, not to assist deliberate obstruction or delay.
- A respondent should ordinarily be given at least 14 days to reply before an application is heard, absent stated exceptional circumstances.
- The right to reply to pleadings once served is secured under Article 50 of the Constitution.
Court orders
#- 1.Orders issued on 1st December, 2020 are set aside
- 2.Respondent given 14 days to file a response to the claim and a Replying Affidavit to the application and notice of motion dated 1st December, 2020
- 3.Claimant to have a right of reply within 14 days of service, after which parties to attend and be allocated a hearing date
- 4.Claim to be heard on the merits
- 5.Costs in the cause
- Jurisdiction invoked
- Order 40 Rules 4 and 7 of the Civil Procedure Rules; Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Emily Atieno v Rajkumar S Patil & another [2021] KEELRC 256 (KLR)", Case Analysis (2021). Not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/256/eng@2021-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.