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ELRCDismissedApplication dated July 28, 2022 (filed August 3, 2022)· [2023] KEELRC 1494 (KLR)

Lidede v Early Learning Montessori Centre & 2 others (Cause 1400 of 2018) [2023] KEELRC 1494 (KLR)

Employment and Labour Relations Court
21 June 2023
MOMaureen Onyango
1,251 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Employment Court in Kenya refused to set aside a default judgment because the employer's application ignored earlier orders certifying the case as undefended.

What this practically means

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Executive summary

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The 1st, 2nd and 3rd Respondents/Applicants moved the court by application dated July 28, 2022 seeking leave for Kiskan Law Africa Advocates LLP to come on record in place of Mulandi Kisabit & Associates, a stay of execution of the judgment entered against them on June 14, 2022, setting aside of that judgment and all consequential orders, and leave to file their Statement of Response out of time. They blamed their former advocates for failing to file a Statement of Response despite adequate instructions and asserted a defence raising triable issues. The Claimant opposed, noting that the Respondents had been served with summons and documents on October 5, 2018, entered appearance the same month, yet never filed a response; she contended the Respondents were indolent in pursuing their own case and that she would be prejudiced by denial of the fruits of her judgment. The court reviewed the procedural history, noting that on November 5, 2019 it had certified the suit ready for hearing as an undefended suit after counsel's failure to file a defence, and that the Respondents subsequently failed to appear for fixing of the hearing date and did not attend the hearing. The court held that the application was fatally defective because it never sought to set aside the November 5, 2019 orders certifying the claim as undefended; until those were set aside the Respondents could not defend the suit, and courts do not make orders in vain. The application was dismissed with costs on June 21, 2023.

Key legal issues

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01

Whether the application to set aside the ex-parte judgment could be granted

Holding

The application was dismissed because it did not seek to set aside the antecedent orders of November 5, 2019 certifying the suit ready for hearing as an undefended suit; without setting those aside, leave to defend would be futile

Reasoning

The court traced the procedural history: the Respondents' counsel entered appearance in 2018 but never filed a defence, leading the court on November 5, 2019 to certify the claim as undefended. The application addressed only the judgment of June 14, 2022 and consequential orders. Because the earlier certification stood, granting leave to file a Statement of Response would produce no practical effect, and courts do not make orders in vain.

p. 3

Legal principles established

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  • A court will not grant orders that would be incapable of taking effect; orders are not made in vain
  • A litigant who seeks to defend a suit after ex-parte judgment must first deal with orders certifying the suit as undefended

Court orders

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  1. 1.The application dated 28th July 2022 is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rulesrule 13(1)
Jurisdiction invoked
Original Employment and Labour Relations Court jurisdiction over the suit; the judgment does not state a specific constitutional/statutory provision

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, "Lidede v Early Learning Montessori Centre & 2 others (Cause 1400 of 2018) [2023] KEELRC 1494 (KLR)", Case Analysis (2023). Application dated July 28, 2022 (filed August 3, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1494/eng@2023-06-21

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