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ELRCDismissedNotice of motion dated 16th November 2018· [2022] KEELRC 718 (KLR)

Margaret Lihabi Ngaira v Winfrida Ngumi Charles [2022] KEELRC 718 (KLR)

Employment and Labour Relations Court
17 February 2022
1,011 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 to undo a judgment won in absentia because the applicant offered no explanation for missing the hearing.

What this practically means

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Executive summary

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The applicant, who was the respondent in an employment claim, moved the Court by notice of motion dated 16th November 2018 seeking to set aside ex parte proceedings of 1st October 2018 together with the judgment and decree entered against her, and to be allowed to ventilate her defence. She argued she was served with a hearing notice on 28th September 2018 at 12.02 p.m., a Friday afternoon, barely days before the Monday hearing, and that the conduct of service smacked of deceit and ill will, invoking Articles 50 and 159 of the Constitution and the right to be heard. The claimant opposed by grounds of contention that the applicant knew the date, did not attend, and that her defence raised no triable issues. The Court recalled the Mbogo v Shah principle that setting aside ex parte judgments serves to avoid injustice from accident, inadvertence or excusable mistake, and the natural justice principle that both sides must be heard. However, the Court noted the applicant did not explain her actual non-attendance or seek an adjournment. The suit had already been heard ex parte once, with judgment delivered on 4th December 2015; that judgment had been set aside by consent in 2017, the matter fixed for hearing, and the respondent duly served with an affidavit of service filed. The trial judge had reinstated the 2015 judgment, finding the respondent bent on wasting judicial time. The Court agreed the applicant was deliberately avoiding hearings and obstructing justice, and dismissed the application with costs to the claimant.

Key legal issues

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01

Whether the ex parte judgment should be set aside

Holding

The application fails because the applicant offered no explanation for non-attendance and the conduct shows deliberate avoidance of court hearings

Reasoning

The court applied the Mbogo v Shah principle on setting aside ex parte judgments but held that an applicant must at least explain non-attendance or seek an adjournment. Here the applicant only complained of short service, did not explain absence, and had a history of non-attendance and successive applications to set aside, including a prior consent setting aside of the 2015 judgment. The court found the conduct abusive of process and declined to disturb the reinstated judgment.

p. 2

Legal principles established

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  • The discretion to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error
  • Rules of natural justice require a tribunal or court to hear both parties before deciding a dispute

Court orders

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  1. 1.The application dated 16th November 2018 is dismissed with costs to the claimant

Authorities

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Legislation

  • Constitution of KenyaArticles 50 and 159

Cases cited (3)

  • Mbogo & Another vs Shah
    EALR, 1908
  • Jones Makau Nthenya and Another vs Principal Magistrate Court Mavoko & Another
    [2017] eKLR
  • Republic vs Kenya Medical Training College exparte James Chepkonga Kandagor
    [2006] eKLR
Jurisdiction invoked
Inherent discretion of the Court to set aside ex parte proceedings and judgment, anchored on Articles 50 and 159 of the Constitution of Kenya and the overriding objective

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, "Margaret Lihabi Ngaira v Winfrida Ngumi Charles [2022] KEELRC 718 (KLR)", Case Analysis (2022). Notice of motion dated 16th November 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/718/eng@2022-02-17

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