Kollengode Venkatachala Lakshminarayan v KSC International Limited (on behalf of the Liquidator) [2021] KEELRC 1070 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata
The preliminary objection failed because the court record showed no earlier conclusive determination of a similar application
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.
Whether the application was capable of being granted
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
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.
Whether leave to file defence out of time should be granted
Leave was refused on the merits because the applicant's inaction for about two years was unexplained and inexcusable
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.
Legal principles established
#- 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
#- 1.Preliminary objection by the Claimant overruled
- 2.Application dated 17.9.2020 dismissed with costs
- 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.Respondent at liberty to file written submissions within ten days from the date of the ruling
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the ELRC; interlocutory application under the ELRC Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.