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ELRCDismissedMemorandum of Appeal dated 28/2/2021, filed February 19, 2021 (from Mombasa CM ELR Case No. 507 of 2018)· [2023] KEELRC 1487 (KLR)

Modern Coast Builders & Contractors Ltd v Wanyama (Appeal E003 of 2021) [2023] KEELRC 1487 (KLR)

Employment and Labour Relations Court
9 June 2023
ANAgnes Kitiku Nzei
1,749 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employer's failure to set aside an earlier interlocutory judgment made all later court filings worthless, so its appeal failed and the Ksh. 622,416 award to its former driver stands.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Mombasa against a ruling of the Principal Magistrate delivered on January 25, 2021, dismissing the Appellant's notice of motion seeking to set aside, review or vary an ex-parte judgment of 6th March 2020 and to have the underlying employment claim proceed to full trial. The underlying claim, Mombasa CM ELR Case No. 507 of 2018, was brought by the Respondent, a long distance truck driver, against his employer (the Appellant) claiming compensation for unfair termination, one month's salary in lieu of notice, unpaid leave, unpaid November 2018 salary and unlawful fuel and insurance deductions, totalling over Ksh. 700,000. The trial court awarded Ksh. 622,416 plus costs and interest after the hearing proceeded ex-parte when the Appellant's application for adjournment was declined. On appeal, the Appellant raised grounds including condemnation unheard, triable issues, Article 50 fair hearing rights and burden of proof. The court, however, did not analyse the grounds because the trial record showed that interlocutory judgment had been entered against the Appellant on 7/2/2019 under Order 10 rule 6 of the Civil Procedure Rules, and that judgment had never been set aside. The statement of defence filed thereafter was not a valid pleading and the Appellant had no right to adduce evidence at the formal proof. Setting aside the ex-parte judgment while the interlocutory judgment subsisted would be a judicial act in futility. The court dismissed the appeal with costs to the Respondent.

Key legal issues

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Whether the appeal to set aside the ex-parte judgment could succeed given the subsisting interlocutory judgment

Holding

The appeal fails because the interlocutory judgment of 7/2/2019 remained in place; the court could not set aside the subsequent ex-parte judgment of 6/3/2020.

Reasoning

The court found that interlocutory judgment was entered on 7/2/2019 under Order 10 rule 6 of the Civil Procedure Rules after the defendant failed to enter appearance in time. That judgment was never set aside. The Appellant's later appearance and statement of defence were therefore invalid pleadings, and the Appellant had no right to present evidence at the formal proof. Any order setting aside the ex-parte judgment would be a nullity while the interlocutory judgment subsists.

p. 4

Legal principles established

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  • Where interlocutory judgment has been entered against a defendant, a purported statement of defence filed without first setting aside that judgment is not a valid pleading and the defendant has no right to testify or call evidence at the formal proof.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment Actsection 41
  • Evidence Act, Cap 80 Laws of Kenya
  • Constitution of KenyaArticle 50
  • Civil Procedure RulesOrder 10 rule 6
  • Civil Procedure RulesOrder 10 rule 11
On appeal from
Principal Magistrate's Court, Mombasa (CM ELR)
Mombasa CM ELR Case No. 507 of 2018
Jurisdiction invoked
First appellate jurisdiction over a ruling of the magistrates' court in an employment and labour relations matter

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, "Modern Coast Builders & Contractors Ltd v Wanyama (Appeal E003 of 2021) [2023] KEELRC 1487 (KLR)", Case Analysis (2023). Memorandum of Appeal dated 28/2/2021, filed February 19, 2021 (from Mombasa CM ELR Case No. 507 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1487/eng@2023-06-09

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