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ELRCPartially AllowedKericho ELRC Cause No. 5 of 2020 (consolidated with Kericho ELRC Cause Nos. 4, 6 & 8 of 2020)· [2021] KEELRC 1699 (KLR)

Sammy Cheruiyot Korir, Jerusha Chepwogen Rotich,Jane Nalonja Rutto & Leonard Kipyegon Chirchir v New Kenya Cooperative Creameries Ltd (Civil Case 5 of 2020) [2021] KEELRC 1699 (KLR)

Employment and Labour Relations Court
25 May 2021
HWHellen Wasilwa
1,183 words in judgment
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The bottom line

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Kenya's Kericho Employment Court set aside a default judgment because the employer was never given pre-trial directions, allowing it to finally defend the claims.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kericho, delivered virtually by Hellen Wasilwa, J, on 25th May 2021, determines the respondent's application dated 5th February 2021 in a consolidated matter (Kericho ELRC Causes Nos. 4, 5, 6 and 8 of 2020) seeking temporary stay of execution of a judgment dated 30th September 2020, setting aside of the judgment and consequential orders, and unconditional leave to defend. The application was prompted by the proclamation of goods at the respondent's Eldoret factory in execution of the decree held by the claimant, Sammy Cheruiyot Korir. The respondent contended it was never served, having closed its offices in March 2020 due to COVID-19 regulations, and that the suits proceeded virtually in Nakuru without pre-trial directions. The claimant opposed, annexing proof of service of summons on 12th February 2020, entry of appearance on 20th February 2020, and email service of subsequent documents under Order 5 Rule 22B of the Civil Procedure (Amendment) Rules 2020 and clause 13 of the Electronic Case Management Directions 2020. The court found that, although service was documented, no pre-trial directions were ever taken as envisaged under Rule 15 of the ELRC (Procedure) Rules 2016 before the ex parte hearing in all four causes. Since the respondent had entered appearance, it was fair to allow it to appear for pre-trial directions; the respondent was thus condemned unheard. The court allowed the application, set aside the judgments of 30th September 2020 and all consequential orders on condition the respondents pay Kshs 10,000 in each file as thrown away costs, granted leave to file defences within 14 days, and ordered that the judgment of 30/9/2020 stands reinstated in default. Costs were reserved to the cause.

Key legal issues

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01

Service of summons and hearing notices on the respondent

Holding

Service was disputed but the court did not rest its decision on it, instead relying on the omission of pre-trial directions

Reasoning

The claimant demonstrated service of summons, entry of appearance and subsequent email service under Order 5 Rule 22B of the Civil Procedure (Amendment) Rules 2020 and the Electronic Case Management Directions 2020. The respondent claimed offices were closed due to COVID-19. The court, however, found the decisive point was that pre-trial directions required by Rule 15 of the ELRC (Procedure) Rules 2016 were never taken before the ex parte hearing.

p. 2
02

Whether the ex parte judgment should be set aside

Holding

Yes - having entered appearance, the respondent was entitled to participate in pre-trial directions and was condemned unheard

Reasoning

The court reasoned that because the respondent had entered appearance on 20/2/2020, it was fair to allow it to appear for pre-trial directions, a step that was omitted before the matter proceeded ex parte. This applied to all four consolidated causes, warranting setting aside the judgments and consequential orders on terms.

p. 2

Legal principles established

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  • Where pre-trial directions were never taken, a party that has entered appearance should not be condemned unheard

Court orders

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  1. 1.Temporary stay of execution of the judgment and consequential orders pending determination granted and set aside terms resolved
  2. 2.Judgment dated 30th September 2020 and all consequential orders set aside on condition the respondents pay Kshs 10,000 in each file as thrown away costs
  3. 3.Respondent granted leave to file defence in all the suits within 14 days
  4. 4.In default of filing defence within 14 days, the judgment of 30/9/2020 stands reinstated
  5. 5.Costs in the cause

Authorities

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Legislation

  • ELRC (Procedure) Rules 2016Rule 15
  • Civil Procedure (Amendment) Rules 2020Order 5 Rule 22B
  • Electronic Case Management Directions 2020clause 13
Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC under Rule 15 of the ELRC (Procedure) Rules 2016

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, "Sammy Cheruiyot Korir, Jerusha Chepwogen Rotich,Jane Nalonja Rutto & Leonard Kipyegon Chirchir v New Kenya Cooperative Creameries Ltd (Civil Case 5 of 2020) [2021] KEELRC 1699 (KLR)", Case Analysis (2021). Kericho ELRC Cause No. 5 of 2020 (consolidated with Kericho ELRC Cause Nos. 4, 6 & 8 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1699/eng@2021-05-25

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