Thuita v Mount Kenya University (Cause E6519 of 2020) [2022] KEELRC 1210 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent demonstrated sufficient cause to set aside the ex-parte judgment of 16th December, 2021, particularly on alleged non-service of the pleadings
The application was dismissed. Service of summons via email was valid under the Covid-19 protocols and the Respondent, as a regular practitioner, could have retrieved the pleadings from the court portal or registry. The Respondent also failed to file a draft defence demonstrating triable issues.
The court accepted that email service was an accepted mode during the Covid-19 pandemic under Gazette Notice 2357 of 4th March 2020, and that the Respondent's insistence on physical service was a mere excuse. The Respondent did not show efforts to access the pleadings from the portal or the registry. Further, an applicant seeking to set aside an ex-parte judgment must show a defence on the merits; the Respondent filed no draft defence, so the court had nothing to weigh for triable issues, and found its averments not candid.
Legal principles established
#- Sufficient cause for setting aside an ex-parte judgment exists where the defendant cannot be blamed for his absence, and is a question of fact for the court's discretion in each case
- The court will not set aside its judgment unless the applicant demonstrates a defence on the merits raising triable issues
- The discretion to set aside a regular ex-parte judgment exists to avoid injustice from accident, inadvertence or excusable error, not to assist a party who deliberately obstructed or delayed justice
Court orders
#- 1.The application dated 13th January, 2022 seeking stay of execution and setting aside of the ex-parte judgment and decree of 16th December, 2021 is dismissed
- 2.Costs of the application to the Claimant
- 3.A signed copy of the judgment to be availed to each party upon payment of court fees
- Jurisdiction invoked
- Inherent jurisdiction of the court to review and set aside its own ex-parte judgment (Employment and Labour Relations Court (Practice) Rules 2016)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thuita v Mount Kenya University (Cause E6519 of 2020) [2022] KEELRC 1210 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1210/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.