Daniel Ndaiga Kamanja & 2 others v Board of Management Highway Secondary School [2021] KEELRC 1703 (KLR)
The bottom line
#Kenya's Employment Court refused to undo a judgment against a school that ignored repeated court notices without offering a real defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established grounds to set aside the ex parte judgment of 9/4/2020
The application was dismissed; the Applicant failed to demonstrate lack of service or a viable defence raising triable issues
The court applied the Chemwolo principle that setting aside a regular judgment requires triable issues supported by an affidavit of merits or draft defence. The Applicant never denied service of summons, mention notices, pre-trial notices and hearing notices, nor sought to cross-examine the process servers. Its only argument - that the Attorney General should have been served under the Government Proceedings Act - did not avail a non-party's failure to attend court.
Whether the suit was res sub judice under Section 6 of the Civil Procedure Act
The sub judice argument failed; the two causes had different subject matters and, in any event, the first suit determined takes priority
The court perused the two statements of claim and found the Applicant failed to establish similarity of suits and parties. Even if the suits were similar, the first-filed suit takes priority and the other would await its determination or be withdrawn. The point therefore did not advance the application.
Whether failure to enjoin and serve the Attorney General justified setting aside the judgment
The argument did not avail the Applicant nor justify its multiple defaults
The court held that a complaint about service on a person who is not a party to the suit could not constitute a justifiable reason for the Applicant's repeated failure to attend court despite service of all process, which the Applicant never denied or tested by cross-examination of the process servers.
Legal principles established
#- Where a regular judgment has been entered, the court will not usually set it aside unless satisfied there are triable issues raising a prima facie defence which should go to trial
- The discretion to set aside an ex parte judgment is to avoid injustice from accident, inadvertence or excusable error, not to assist a party who deliberately obstructed or delayed the cause of justice
- The applicant for setting aside a regularly obtained judgment must produce an affidavit of merits or draft defence evidencing a prima facie defence
Court orders
#- 1.The Notice of Motion dated 10/11/2020 is dismissed
- 2.Costs of the application awarded to the claimants/respondents
- Jurisdiction invoked
- Inherent discretion of the court under the Civil Procedure Act and Rules to set aside ex parte judgment; application brought by Notice of Motion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Ndaiga Kamanja & 2 others v Board of Management Highway Secondary School [2021] KEELRC 1703 (KLR)", Case Analysis (2021). ELRC Cause No. 2036 of 2016 (Notice of Motion dated 10/11/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1703/eng@2021-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.