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ELRCDismissedNot stated in the judgment as provided· [2022] KEELRC 1517 (KLR)

Okello v Glosec Services Limited (Cause 219 of 2015) [2022] KEELRC 1517 (KLR)

Employment and Labour Relations Court
16 June 2022
2,012 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who ignored an employment case for six years lost its bid to overturn a Kshs.577,397 judgment against it.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nakuru (David Nderitu J) on a notice of motion dated January 28, 2022 in which the respondent sought to set aside a default judgment delivered by Wasilwa J on October 7, 2021, awarding the claimant Kshs.577,397.35 plus costs and interest, and to be granted leave to defend the memorandum of claim filed in July 2015. The application was brought under Order 10 rule 11 and Order 51 rule 1 of the Civil Procedure Rules and supported by an affidavit of the respondent's director, John Njuguna. The claimant, Erick Omondi Okello, opposed it through two replying affidavits. The court framed a single main issue: whether the judgment and decree should be set aside. It found that the respondent had been duly served with the memorandum of claim and summons as early as August 3, 2015; that fresh service was ordered by Radido J in 2017 and confirmed by Mbaru J in 2019; that the respondent's director visited the claimant's counsel in March 2019 seeking an out-of-court settlement and attended court on several dates, proving knowledge of the cause; that no consent recording any settlement was filed; and that a unilateral deposit of Kshs.26,908 into the claimant's account could not amount to a settlement. The respondent offered no explanation for its failure to defend and attached no draft defence, so no triable issues were demonstrated. Applying the principles in Anne Wanja Mwangi v Samson Muriithi Muriuki and James Kanyita Nderitu v Morris Philotas Ghikas, and the overriding objective, the court held that equity does not aid the indolent, that litigation must come to an end, and that setting aside after nearly seven years would prejudice the claimant. The application was dismissed with costs to the claimant, and the court ordered that the deposited sum be taken into account in computing the amount due and payable to the claimant.

Key legal issues

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01

Whether the default judgment and decree of October 7, 2021 should be set aside under Order 10 rule 11

Holding

The application fails: the respondent was properly served, was aware of the cause throughout, deliberately failed to defend it, and disclosed no prima facie defence.

Reasoning

The court found service duly effected (affidavit of service of August 3, 2015, plus later court orders confirming service and notices). The respondent's director visited the claimant's counsel in 2019 and attended court on several dates, proving knowledge. No consent recording settlement was filed; the unilateral deposit of Kshs.26,908 was not a settlement. No draft defence was attached, so the court could not assess any triable issues. Delay of nearly seven years would prejudice the claimant, and litigation must come to an end.

p. 3
02

Treatment of the Kshs.26,908 unilaterally deposited into the claimant's account

Holding

Although deposited without the claimant's consent, the amount shall be taken into account in computing the sum due and payable under the decree.

Reasoning

Both parties agreed the deposit was made but the claimant denied consenting to it. The court declined to treat it as a settlement but, balancing the parties' positions, directed that it be offset in determining the actual amount payable to the claimant under the judgment.

p. 5

Legal principles established

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  • The court's discretion under Order 10 rule 11 to set aside a default judgment, though wide, is guided by settled principles including reason for default, delay, triable issues, prejudice and the interest of justice.
  • A party who was duly served and aware of a cause but deliberately declined to defend it cannot obtain setting aside of the ensuing default judgment; equity does not aid the indolent.
  • An applicant for setting aside must demonstrate a prima facie defence, ordinarily by attaching a draft defence; failure to do so is fatal.
  • A unilateral deposit of money into a claimant's account without consent does not constitute a settlement of a pending cause.

Court orders

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  1. 1.The respondent's application to set aside the judgment, decree and proceedings is dismissed
  2. 2.The sum of Kshs.26,908 deposited by the respondent into the claimant's bank account be taken into account in determining the actual amount due and payable to the claimant
  3. 3.Costs of the application awarded to the claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 10 rule 9
  • Constitution of Kenya, 2010Article 159(2)
  • Employment and Labour Relations Court ActSection 3(1)
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3 and 3A

Cases cited (2)

  • Anne Wanja Mwangi v Samson Muriithi Muriuki
    (2019) eKLR
  • James Kanyita Nderitu & another v Morris Philotas Ghikas & another
    (2016) eKLR
Jurisdiction invoked
Order 10 rule 11 and Order 51 rule 1 of the Civil Procedure Rules; Article 159(2) of the Constitution; Section 3(1) of the Employment and Labour Relations Court Act

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, "Okello v Glosec Services Limited (Cause 219 of 2015) [2022] KEELRC 1517 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1517/eng@2022-06-16

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