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ELRCDismissed(not stated in judgment)· [2022] KEELRC 1562 (KLR)

Buluma v Kenya Methodist University (Employment and Labour Relations Claim 284 of 2018) [2022] KEELRC 1562 (KLR)

Employment and Labour Relations Court
2 June 2022
HWHellen Wasilwa
2,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to set aside a Kshs. 790,000 default judgment because the losing party's own advocates had stamped receipt of the hearing notice.

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 on the Respondent/Applicant's Notice of Motion dated 18th January 2022, brought under Order 10 Rule 11, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution. The Applicant sought stay of execution of, and setting aside of, an ex parte judgment delivered on 16th December 2021 awarding the Claimant Kshs. 790,000 plus costs and interest, contending it was never served with the hearing notice and was condemned unheard contrary to Article 50. The Claimant opposed, showing that summons were served on 14th January 2019, appearance was entered on 6th November 2019 through Lusweti and Nabutola Advocates, mention notices were served, and the hearing notice for 11th November 2021 was served on 10th June 2021 and stamped as received by the Applicant's advocates' firm. The matter proceeded ex parte on 11th November 2021 in the Applicant's absence. In submissions the Applicant relied on Arithi Selasio Murungi and James Kanyiita Nderitu to argue the judgment was irregular; the Claimant relied on CMC Holding Limited, Harun Rashid Khator, SMR Limited, Regina Munyiva Nthenge, CMC Motors Group and Shadrack Arap Boiywo, arguing service was proved, no draft defence was exhibited, and no leave to cross-examine the process server was sought. Justice Hellen Wasilwa found the claim of non-service untrue, observed the Applicant had never filed a defence and had not been serious in defending the claim, and dismissed the application with costs to the Claimant on 2nd June 2022.

Key legal issues

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01

Whether the hearing notice for 11th November 2021 was served on the Applicant

Holding

Service was proved; the stamped hearing notice was received by the Applicant's advocates' firm on 10th June 2021

Reasoning

The court traced the chronology: summons served 14/1/2019, appearance entered 6/11/2019, mention notice served 20/4/2021, and hearing notice served 10/6/2021 bearing the Applicant's firm's stamp. The claim that there was no service of the hearing notice was found untrue, and no application to cross-examine the process server was made.

p. 5
02

Whether the ex parte judgment was irregular and should be set aside

Holding

The judgment was regular; the application to set it aside was unmerited

Reasoning

Having been served with summons and hearing notices, the Applicant chose not to file a defence or attend hearing. The court found the Applicant had not been serious in defending the claim and had not exhibited a draft defence showing triable issues, so setting aside was not warranted.

p. 5

Legal principles established

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  • A party served with a hearing notice who fails to attend cannot claim to have been condemned unheard, and a court will not set aside an ex parte judgment where service is stamped as received by the applicant's advocates.
  • A party disputing service ought to seek leave to cross-examine the process server.

Court orders

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  1. 1.The Notice of Motion dated 18th January 2022 is dismissed
  2. 2.Costs of the application awarded to the Claimant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 10 Rule 11
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 5 Rule 16
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 50
  • Employment and Labour Relations (Procedure) Rules, 2016Rule 22(1)
  • Oaths and Statutory Declarations ActSection 5

Cases cited (8)

  • Arithi Selasio Murungi V Bright Wanja Julius
    [2020] eKLR
  • James Kanyiita Nderitu and another V Marios Philotas Ghikas and another
    [2016] eKLR
  • CMC Holding Limited v James Mumo Nzioki
    [2004] eKLR
  • Harun Rashid Khator Suing as the representative of Rashid Khator (Deceased) v Sudi Hamisi & 11 others
    [2014] eKLR
  • SMR Limited V Michael Ezra Mulwooya
    [2019] eKLR
  • Regina Munyiva Nthenge v Kenya Commercial Bank Limited
    [2005] eKLR
  • CMC Motors Group Limited V Bangeria Arap Koris Trading as Marben School and another
    [2013] eKLR
  • Shadrack Arap Boiywo v Bodi Bah
    [1987] eKLR
Jurisdiction invoked
Order 10 Rule 11, Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159 of the Constitution

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, "Buluma v Kenya Methodist University (Employment and Labour Relations Claim 284 of 2018) [2022] KEELRC 1562 (KLR)", Case Analysis (2022). (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1562/eng@2022-06-02

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