Karanja v Maxland Restaurant, Bar & Lounge (Cause 866 of 2016) [2023] KEELRC 639 (KLR)
The bottom line
#A Nairobi court refused to undo a workplace judgment against Maxland Restaurant because the business was properly served but simply ignored the case, and offered no real defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's advocate was properly on record
Neither order 9 rule 7 nor order 9 rule 9 captured the circumstances; counsel was properly on record as there was no previous advocate or change after judgment.
The claimant relied on order 9 rule 7 (notice of appointment) while the applicant relied on order 9 rule 9 (change of advocate after judgment). The court held that neither provision applied because the respondent had never participated in the proceedings and therefore had no previous advocate; applying rule 9 would produce an absurdity. Counsel for the applicant was thus properly on record.
Whether service of summons, claim and hearing notices was effected
Documentary evidence on record established that the claim, summons, mention and hearing notices and notice of taxation were all served on the respondent or its employees.
An affidavit of service by Dan Otieno Achando showed service on one Gabriel Kibicha Munene, general manager, at the Waiyaki Way head office; the hearing notice was served at Juja City Mall on a secretary, Roxana; and the notice of taxation was posted to the respondent's postal address with a postage certificate. The applicant never denied that the venues, persons or postal address were its own, and never sought leave to cross-examine the process server.
Whether the ex parte judgment should be set aside and leave to defend granted
The application was dismissed: the applicant's default was due to its own inaction, the delay of almost two years was inordinate, and the draft defence raised no triable issues.
The court applied the Shah v Mbogo and CMC Holdings principles that the discretion to set aside ex parte judgments must be exercised judiciously and will not assist a party who deliberately obstructs or delays the course of justice. The applicant slept on its rights, cited the wrong judgment date, pleaded no mistake or inadvertence, and its defence was mere denial. Awareness of the suit meant it could not claim it was condemned unheard.
Legal principles established
#- Refusal, failure or neglect to respond to and defend a suit while aware of its existence is not a procedural technicality but a substantive issue.
- A party that was served but chose not to participate is estopped from alleging that it was condemned unheard.
- The discretion to set aside an ex parte judgment is exercised to avoid injustice but will not assist a litigant who deliberately obstructs or delays the course of justice.
Court orders
#- 1.The notice of motion dated September 21, 2022 is dismissed with costs.
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 10 rule 11 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karanja v Maxland Restaurant, Bar & Lounge (Cause 866 of 2016) [2023] KEELRC 639 (KLR)", Case Analysis (2023). Cause No 866 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/639/eng@2023-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.