Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedELRC suit of 2016 (Memorandum of Claim dated 9th August 2016), Mombasa· [2022] KEELRC 200 (KLR)

Alfred Okuli Ekesa v Sas Security Services Ltd [2022] KEELRC 200 (KLR)

Employment and Labour Relations Court
24 March 2022
2,021 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court refused to reopen ex-parte proceedings because the employer ignored court orders and showed no reason for missing its own hearing.

What this practically means

#

Executive summary

#
This is a first-instance ruling of the Employment and Labour Relations Court at Mombasa (Agnes Kitiku Nzei, J) on the Respondent's Notice of Motion dated 17th December 2021, brought under Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, seeking setting aside of ex-parte proceedings of 15th December 2021 and leave to file a Response and documents. The underlying 2016 claim proceeded ex-parte after the Respondent, despite being served in 2016 and granted an adjournment on 25th November 2021 with seven days to file all documents and an order to pay costs of Kshs.10,000, neither attended the hearing nor complied with those orders. The Claimant opposed, arguing the Respondent was indolent, that setting aside is not automatic, and that the suit had been pending since 2016. The Court held that under Rule 22(1) of the ELRC (Procedure) Rules 2016 it properly proceeded in the Respondent's absence, that no sufficient cause was shown for the default, and that a party cannot claim to be heard as of right after disobeying specific orders. Relying on Muthui Muli v Ezeetec Ltd [2014] eKLR, the Court declined to exercise its discretion a second time, dismissed the application with costs to the Claimant, and directed mention on 21st April 2022 for fixing a judgment date, allowing the Respondent leave to file written submissions on matters of law only.

Key legal issues

#
01

Whether ex-parte proceedings should be set aside

Holding

Application dismissed; the Respondent was indolent, did not comply with orders of 25th November 2021 and showed no sufficient cause

Reasoning

The hearing date was fixed in the presence of both Counsel; the Respondent neither attended on 15th December 2021 nor filed documents as ordered on 25th November 2021, and gave no reasons for either default. Having already been granted one adjournment and leave to file documents, the Respondent squandered that opportunity. The Court declined to exercise its discretion a second time in favour of a party that slept on its right to be heard.

p. 3
02

Whether setting aside ex-parte proceedings is a matter of right

Holding

No; it depends on the circumstances and on the applicant showing sufficient cause

Reasoning

The Respondent argued that fairness, natural justice and the overriding objective entitled it to be heard as of right. The Court rejected this, holding that justice cuts both ways and that a party whose indolence and unexplained non-compliance caused the ex-parte hearing cannot invoke fairness to undo it, applying the Muthui Muli decision.

p. 3

Legal principles established

#
  • Equity does not aid the indolent; a party who sleeps on its rights and disobeys court orders cannot claim setting aside as of right
  • Court orders must be obeyed and discretion will not be exercised in favour of a party who fails to comply without explanation

Court orders

#
  1. 1.The Respondent's Notice of Motion dated 17th December 2021 is dismissed with costs to the Claimant
  2. 2.The suit to be mentioned in Court for fixing of a judgment date on 21st April 2022
  3. 3.Under Rule 38 of the ELRC (Procedure) Rules 2016, the Respondent may file written submissions if it so wishes, but only on matters of law

Authorities

#

Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSections 1A, 1B, 3A and 63
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 22(1)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 38

Cases cited (1)

  • MUTHUI MULI –VS- EZEETEC LTD
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules 2016, Rule 22(1)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Alfred Okuli Ekesa v Sas Security Services Ltd [2022] KEELRC 200 (KLR)", Case Analysis (2022). ELRC suit of 2016 (Memorandum of Claim dated 9th August 2016), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/200/eng@2022-03-24

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