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ELRCDismissedCause No 26 of 2020· [2023] KEELRC 1988 (KLR)

Wanjiku v Aldonai Enterprises Ltd (Cause 26 of 2020) [2023] KEELRC 1988 (KLR)

Employment and Labour Relations Court
31 July 2023
ANAGNES KITIKU NZEI
1,631 words in judgment
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The bottom line

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The Employment Court in Mombasa refused to reverse a judgment against an employer that ignored its own case and only acted when auctioneers came for its property.

What this practically means

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Executive summary

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The claimant filed a memorandum of claim on June 12, 2020, which was served on the respondent. The respondent entered appearance through Mwaniki Gitahi & Partners Advocates on March 29, 2022, and counsel obtained 14 days' leave at pre-trial directions on March 31, 2022 to file a response, witness statements and documents. Nothing was filed. At the hearing on June 6, 2022 neither the respondent nor its counsel attended; the claimant testified and closed his case, and the respondent's case was marked closed. The respondent and its counsel also failed to attend the mention of July 25, 2022 or file submissions, and judgment was delivered on November 3, 2022 in their absence. It was only after execution commenced and the respondent's movable properties were proclaimed by an auctioneer that the respondent filed the notice of motion dated March 20, 2023 seeking leave for new advocates to come on record, a stay of execution, and setting aside of the entire proceedings with a trial de novo, contending that its former advocates had been served with an incomplete set of pleadings. The claimant opposed, asserting complete service. The court found the respondent's deponent self-contradictory, held that the respondent was duly served with summons, pleadings and all notices, and that the respondent lacked seriousness and was not truthful. Applying Shah v Mbogo and following Charles Omwata Omwoyo v African Highlands Produce Company Limited, the court held that a non-vigilant litigant cannot hide behind its counsel's alleged negligence and that the respondent's remedy lay against its erstwhile advocates. The application was dismissed with costs to the claimant.

Key legal issues

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01

Whether the judgment delivered on November 3, 2022 and the proceedings leading thereto should be set aside and the suit start de novo

Holding

The application was dismissed; the court found the respondent was duly served throughout, was not truthful about incomplete service, and showed no basis for setting aside the judgment

Reasoning

The respondent admitted instructing counsel after service of summons and pleadings but contradicted itself by alleging incomplete service without indicating when the pleadings became incomplete. Counsel was granted leave to file a response and never did, and failed to attend the hearing fixed in counsel's presence. The court found the proceedings were conducted properly and that the respondent lacked seriousness, blaming its outgoing counsel to obtain undeserved orders.

p. 3
02

Whether alleged inaction or negligence by the respondent's counsel justifies setting aside the judgment

Holding

Counsel negligence allegations are considered case by case, and in this case the respondent's remedy is against its erstwhile advocates, not setting aside

Reasoning

The court adopted Ringera J's statement in Charles Omwata Omwoyo that legal practitioners must shoulder the consequences of their negligent acts or omissions like other professionals, and that a plaintiff should not bear the consequences of the defendant's advocate's negligence. The respondent made no effort to follow up its suit with its advocates.

p. 3

Legal principles established

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  • The discretion to set aside an ex-parte judgment exists to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the cause of justice
  • A non-vigilant litigant woken up by execution cannot hide behind alleged transgressions of its counsel; the remedy for counsel's negligence lies against the advocate, not in setting aside the judgment

Court orders

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  1. 1.The respondent's notice of motion dated March 20, 2023 is dismissed
  2. 2.Costs of the application awarded to the Claimant/Respondent, to be agreed upon or taxed as by law provided

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (2)

  • Shah -vs- Mbogo
    [1969] EA 116, 123
  • Charles Omwata Omwoyo -vs- African Highlands Produce Company Limited
    [2002] eKLR
Jurisdiction invoked
Inherent powers of the court under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, as invoked in the application

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, "Wanjiku v Aldonai Enterprises Ltd (Cause 26 of 2020) [2023] KEELRC 1988 (KLR)", Case Analysis (2023). Cause No 26 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1988/eng@2023-07-31

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