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ELRCDismissedCause No E038 of 2022· [2023] KEELRC 2127 (KLR)

Letambul v County Government of Samburu & another (Cause E038 of 2022) [2023] KEELRC 2127 (KLR)

Employment and Labour Relations Court
22 September 2023
OMOnesmus N Makau
1,539 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nyeri (Makau J) on the respondents' notice of motion dated March 2, 2023 seeking to set aside an ex parte judgment delivered on February 15, 2023 awarding the claimant Kshs 1,722,710.00 against the 1st and 2nd respondents for unlawful dismissal, and leave to file a defence. The applicants, through an affidavit of their CEO Josphat Lekamario, contended they were never served with summons and statement of claim, that no affidavit of service for summons was on record, and that they had a defence raising triable issues (valid reason and fair procedure for the dismissal). The claimant countered that summons, mention and hearing notices were all served and acknowledged by stamp and signature by the respondents' officers, and that the CEO knew of the suit, negotiated settlement, and attended a meeting with county officials over an out-of-court resolution. The court framed three issues: awareness of the suit and failure to defend; existence of a defence with triable issues; and the fate of the application. Finding no affidavit of service for summons but satisfied that stamped and signed hearing notices brought the suit to the respondents' attention, the court held the respondents deliberately ignored court process, rendering the CEO's deposition false. Applying Shah v Mbogo, the court held the discretion to set aside is not designed to assist those who delay or obstruct justice. Although the proposed defence raised triable issues, public policy that litigation must end after judgment prevailed. The application was dismissed with costs. Delivered virtually pursuant to Covid-19 directions with parties waiving Rule 28(3) compliance.

Key legal issues

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01

Service of summons and awareness of the suit

Holding

Though no affidavit of service for summons was on record, the respondents were aware of the suit via stamped and signed hearing notices, having been served with several notices

Reasoning

The court perused the record and found hearing notices bearing signatures and receiving stamps, plus affidavits of service for them. Absence of a summons affidavit did not negate awareness; the respondents were called to court repeatedly and did nothing, so the judgment after formal proof was regular.

p. 3
02

Whether a defence with triable issues justifies setting aside

Holding

A potentially reasonable defence does not justify setting aside where the party was aware of the suit and deliberately ignored court process

Reasoning

The court accepted that the defence (valid reason and fair procedure for dismissal) raised triable issues, but held the respondents indolent; the interest of justice and public policy that litigation must conclude after judgment outweighed the triable-issues argument.

p. 4
03

Credibility of the 2nd respondent's CEO

Holding

The CEO's claim that he first learned of the suit on February 14, 2023 was false

Reasoning

The claimant's evidence showed the CEO had been contacted about settlement negotiations and attended a meeting with county officials regarding an out-of-court settlement. The court expressly disbelieved the CEO's deposition, undermining the application's foundation.

p. 3

Legal principles established

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  • The discretion to set aside ex parte judgments must be exercised judiciously and does not assist a party who deliberately sought to delay or obstruct justice
  • A party who becomes aware of a suit before judgment and takes no steps to defend it should not seek setting aside of the adverse ex parte orders
  • Service of hearing notices that brings a party's awareness of the suit satisfies the purpose of summons

Court orders

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  1. 1.Notice of motion dated March 2, 2023 dismissed with costs
  2. 2.The ex parte judgment delivered on February 15, 2023 stands (setting aside refused)

Authorities

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Legislation

  • ELRC Procedure RulesRule 28(3)

Cases cited (3)

  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    (2016) eKLR
  • Wachira Karani v Bildad Wachira
    (2016) eKLR
  • Shah v Mbogo
    (1967) EA 116 (HCK)
Jurisdiction invoked
ELRC Procedure Rules (incl. Rule 28(3)); inherent jurisdiction to set aside ex parte judgments

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Letambul v County Government of Samburu & another (Cause E038 of 2022) [2023] KEELRC 2127 (KLR)", Case Analysis (2023). Cause No E038 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2127/eng@2023-09-22

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