Ondeyo v Jumba & another (Cause 1001 of 2017) [2023] KEELRC 245 (KLR)
The bottom line
#A Nairobi employment court refused to overturn a 2020 judgment against a woman who claimed she was never served, because her own lawyer had appeared in the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant was served and aware of the proceedings
The Applicant was served with the statement of claim, instructed a law firm which entered appearance, and her advocate appeared at the formal proof hearing; her claim of non-service was misleading
A process server's affidavit showed service of the claim on the Applicant's house helps on 21st July, 2017. The firm of Busaidy Mwaura Ngarua & Co. Advocates entered appearance two months later, indicating instructions from the Applicant. Her counsel appeared at the formal proof on 16th September, 2019. Mention notices and hearing notice were served on her advocates, and the judgment date was communicated to her by phone. The court found her assertion of non-service to be a misrepresentation.
Whether the judgment delivered on 21st February, 2020 should be set aside
The application to set aside failed because the judgment was regular, no prima facie defence was exhibited, and the application was brought after an inordinate delay of over two years
Under Order 10 Rule 11 the power to set aside is discretionary. Where the judgment is regular, the applicant must show a prima facie defence; none was filed. The judgment was delivered on 21st February, 2020 and the application filed on 24th May, 2022, a delay of over two years and two months which the court held was not timeous. The application was accordingly dismissed.
Legal principles established
#- A regular ex-parte judgment will not be set aside where the applicant fails to demonstrate a prima facie defence or intends to delay or obstruct justice
- An irregularly obtained judgment cannot stand; setting aside is discretionary upon terms as are just
Court orders
#- 1.The Notice of Motion dated 16th May, 2022 is dismissed
- 2.Parties to bear own costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondeyo v Jumba & another (Cause 1001 of 2017) [2023] KEELRC 245 (KLR)", Case Analysis (2023). Not stated in the judgment (Notice of Motion dated 16th May, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/245/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.