Ndungu v Robert Bosch East Africa (Cause 656 of 2019) [2023] KEELRC 2108 (KLR)
The bottom line
#A Kenyan employment court refused to set aside an earlier ruling, finding the applicant had no credible excuse for missing a virtual hearing and waiting months to act.
What this practically means
#Executive summary
#Key legal issues
#Whether the ruling of 11th October, 2022 should be set aside for alleged denial of the right to be heard
No. The applicant was aware of the application and hearing, failed to evidence the technical challenges alleged, and was properly served; the non-participation was its own default
The applicant admitted receiving the Notice of Motion and hearing notice for 30th June, 2022 and knew of the ruling date. It offered no evidence of the nature of the technical challenges or any attempt to contact counsel, the Court Assistant or the court. Affidavits of service confirmed service of hearing, mention and ruling notices to the applicant's official email address, which it never disputed. Its application to arrest the ruling was itself filed a day after the ruling was delivered.
Whether the applicant was served with the various notices of mention
Yes. Three affidavits of service established service of the Notice of Change of Advocates, hearing notice, application and mention notices, and the applicant never denied the email address used
A process server effected physical service at Jamia Plaza on 13th June, 2022, and mention notices were sent to chaudhria@hotmail.com, the applicant's official email. The court reasoned that if service had not been effected, the applicant would have denied the email address and provided the official one. It did neither, so service was established.
Whether the applicant deserved unconditional leave to file a response
No. The applicant read and understood the application but neglected to respond, gave no cogent explanation, delayed over seven months, and showed no prejudice
The court found the applicant had read and understood the Notice of Motion but failed and neglected to respond, made no application for extension of time, and took over seven months to move the court. It failed to demonstrate the prejudice it would suffer and the draft Replying Affidavit disclosed no triable material. Granting leave would delay the expeditious disposal of the suit.
Legal principles established
#- The court's power to set aside or vary judgments or orders is discretionary and intended to avoid injustice from accident, inadvertence or excusable mistake, but cannot assist a litigant seeking to evade, obstruct or delay justice
- Service of process is mandatory and essential in civil litigation
- A party alleging technical impediment to virtual attendance must disclose and evidence the nature of the challenge and mitigation steps taken
Court orders
#- 1.The Respondent's Notice of Motion dated 12th May, 2023 is dismissed with costs
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules; Section 3 of the Employment and Labour Relations Court Act, 2011; Articles 50(e) and 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v Robert Bosch East Africa (Cause 656 of 2019) [2023] KEELRC 2108 (KLR)", Case Analysis (2023). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2108/eng@2023-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.