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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 364 (KLR)
Charles v Chebwayi Adventist Complex (College) (Cause 322 of 2017) [2023] KEELRC 364 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#A Kenyan employer failed to set aside a default judgment because it could not prove it was never served with court documents.
What this practically means
#Executive summary
#The respondent in an employment claim filed a notice of motion dated December 9, 2020 seeking stay of execution of the decree, setting aside of the default judgment/award, and leave to defend the claim. The application was supported by an affidavit of Stanley Kimaru Busienei, the respondent's deputy principal, who asserted that the respondent was never served with the claim documents, that the affidavits of service were false, and that the respondent had a good defence. The claimant opposed, contending that service was properly effected, that the application was brought in bad faith as a trial-and-error effort after an objection to execution had been dismissed, and that the respondent had appealed to the Court of Appeal against that ruling. Both parties filed submissions citing various authorities. The court framed the issue as whether there was sufficient evidence to warrant setting aside the judgment on record. It found that service had been effected and that the respondent's denial of service did not hold water. It further held that the respondent relied solely on the non-service averment and had not demonstrated any other ground warranting setting aside of the ex-parte judgment. Accordingly, the application dated December 9, 2020 was dismissed with costs to the claimant. Judgment delivered at Eldoret on February 3, 2023 by Abuodha Nelson Jorum, Judge ELRC.
Key legal issues
#01
Sufficiency of evidence to warrant setting aside default judgment
Holding
Service was effected and the respondent advanced no other ground; the application failed.
Reasoning
The court examined the affidavits of service and found the respondent's denial of service unsubstantiated. Having found service effected, the court considered whether any other ground justified setting aside the ex-parte judgment. It concluded the respondent relied solely on the non-service averment and offered nothing else, so the application was unmerited and dismissed with costs.
p. 2
Legal principles established
#- A party seeking to set aside a default judgment on the basis of non-service must demonstrate that service was not effected; bare assertions that it was not served do not suffice.
Court orders
#- 1.The respondent's application dated December 9, 2020 is dismissed
- 2.Costs of the application to the claimant
- Jurisdiction invoked
- Inherent jurisdiction of the Employment and Labour Relations Court to set aside ex-parte/default judgments (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles v Chebwayi Adventist Complex (College) (Cause 322 of 2017) [2023] KEELRC 364 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/364/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.