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ELRCDismissedELRC No. 487 of 2018· [2021] KEELRC 1070 (KLR)

Kollengode Venkatachala Lakshminarayan v KSC International Limited (on behalf of the Liquidator) [2021] KEELRC 1070 (KLR)

Employment and Labour Relations Court
19 August 2021
1,673 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused a company permission to file its defence two years late because it could not explain the delay.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi by Onesmus N. Makau J disposed of a Notice of Motion dated 17 September 2020 by KSC International Limited (in Receivership), the Respondent in the main suit, seeking to stay delivery of judgment reserved for 8 October 2020, to have its Reply deemed filed, or alternatively leave to file a Response to the Claimant's memorandum of claim. The Claimant opposed via a preliminary objection arguing res judicata and functus officio, and on the merits citing two years of unexplained delay. The court framed three issues. First, the preliminary objection failed: the court record for 23 July and 30 July 2020 showed no prior conclusive determination of a similar application, so res judicata did not arise. Second, the court agreed with the Claimant that the orders sought were incapable of being granted because the applicant had not sought to set aside the interlocutory judgment of 23 May 2019, the order closing the hearing on 29 June 2020, or the order reserving judgment; parties are bound by their pleadings. Third, on the merits, the applicant had been served with summons on 26 October 2018 but acted only after seeing the cause list on 29 June 2020, offering no explanation for the two-year inaction. Applying Wayua James, the court held the delay inexcusable and denied leave. The preliminary objection was overruled, but the application was dismissed with costs, with liberty for the parties to negotiate and for the Respondent to file written submissions within ten days.

Key legal issues

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01

Res judicata

Holding

The preliminary objection failed because the court record showed no earlier conclusive determination of a similar application

Reasoning

The Claimant alleged the applicant had orally made a similar application on 23.7.2020 which was dismissed. On perusal of the record, the court found no determination of any verbal application for leave to file defence on that date; counsel were merely heard and the matter fixed for mention on 30.7.2020. On 30.7.2020 no leave application was sought and the matter was reserved for judgment. Since there was no adjudication and conclusive determination of a similar application, res judicata did not apply.

p. 2
02

Whether the application was capable of being granted

Holding

The orders sought were incapable of being granted because no setting aside of the interlocutory judgment, the closing of the hearing, or the order reserving judgment was sought

Reasoning

An interlocutory judgment was entered on 23.5.2019, the hearing was closed by the order of 29.6.2020, and judgment was reserved by the order of 30.7.2020. These orders and proceedings were unchallenged, yet the application sought only to stay or arrest the judgment, deem a defence filed, or obtain leave to file one. Parties are bound by their own pleadings, and the court does not exist to aid a party who makes poor pleadings. The court nonetheless considered the merits.

p. 2
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Whether leave to file defence out of time should be granted

Holding

Leave was refused on the merits because the applicant's inaction for about two years was unexplained and inexcusable

Reasoning

The applicant was served with summons and the claim on 26.10.2018 as evidenced by the affidavit of service sworn by Mr. Felix Omondi Owino on 29.10.2018, but only acted on 29.6.2020 after seeing the matter in the cause list. No explanation was offered for the intervening two years. Following Wayua James, courts do not assist indolent applicants; the discretionary relief demanded convincing justification which was absent.

p. 3

Legal principles established

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  • A matter is res judicata only if it has been adjudicated upon and conclusively determined by a court of competent jurisdiction
  • A party cannot obtain leave to file a defence out of time without also seeking to set aside the orders and proceedings that led to judgment being reserved
  • A party seeking discretionary leave to file defence out of time must explain its delay; indolence disqualifies it

Court orders

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  1. 1.Preliminary objection by the Claimant overruled
  2. 2.Application dated 17.9.2020 dismissed with costs
  3. 3.Parties at liberty to negotiate and, if agreement reached, file it and bring it to the attention of the court through the Deputy Registrar before the date reserved for judgment
  4. 4.Respondent at liberty to file written submissions within ten days from the date of the ruling

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (3)

  • Pinnacle Projects Limited v Presbyterian of East Africa, Ngong Parish & Another
    [2019] eKLR
  • George Buoro v. Kenindia Assurance Company Limited
    [2018] eKLR
  • Wayua James & another v. Daniel Kipkorong Tarus and Another
    [2014] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC; interlocutory application under the ELRC Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kollengode Venkatachala Lakshminarayan v KSC International Limited (on behalf of the Liquidator) [2021] KEELRC 1070 (KLR)", Case Analysis (2021). ELRC No. 487 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1070/eng@2021-08-19

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