Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherCause No E752 of 2021· [2023] KEELRC 2283 (KLR)

Solanki v Hard Tech Industrial Supplies Ltd (Cause E752 of 2021) [2023] KEELRC 2283 (KLR)

Employment and Labour Relations Court
28 September 2023
JGJacob Gakeri
2,465 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to undo an ex parte ruling because the company ignored the case for two years and offered no proof it ever hired a lawyer.

What this practically means

#

Executive summary

#
The Respondent/Applicant moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 19th May 2023 seeking to set aside the ex parte proceedings and interlocutory judgment entered against it, leave to defend the suit and file pleadings out of time. Jayantkumar Patel, a director, deponed that he received summons in 2021 and instructed Hashim & Lesaigor Associate Advocates, who only filed a memorandum of appearance, with the suit proceeding undefended. The Claimant opposed, contending that the applicant was served by email on 30th September 2021 and physically on 1st October 2021, received multiple mention notices, and offered no credible explanation for its silence other than unproven counsel neglect. The court framed a single issue: whether the application was merited. It held that the court had jurisdiction under Article 159(2)(d), Section 3A and Sections 1A and 1B of the Civil Procedure Act and Order 51 Rule 15, but the applicant produced 'no scintilla of evidence' of instructions to counsel, no memorandum of appearance was on record, and the director failed to follow up the matter from 2021 to May 2023. Applying Shah v Mbogo, Wachira Karani and Gerald Mwithia, the court held that the right to be heard does not protect a litigant who deliberately avoids court processes. The court dismissed the application, declined to re-open the claimant's closed case, but in the interest of justice granted the respondent leave to file its defence, documents and witness statement within 10 days, failing which its case would be deemed closed; costs to abide the outcome of the suit.

Key legal issues

#
01

Whether the applicant demonstrated sufficient cause to warrant setting aside the ex parte proceedings

Holding

The application fails; the applicant produced no evidence of instructions to counsel and was aware of the suit's progress throughout

Reasoning

The court found that service of the summons and mention notices was effected but elicited no response. The deponent gave no date or proof of instructions, no memorandum of appearance was on record, and the applicant never followed up its alleged defence from 2021 to May 2023. The authorities on mistake by counsel were therefore unpersuasive on these facts.

p. 4
02

Balancing the right to be heard against a litigant's deliberate avoidance of court processes

Holding

The audi alteram partem right does not protect a litigant who deliberately avoids court processes

Reasoning

While the right to be heard is a constitutional and statutory imperative, justice belongs to both parties. The applicant was aware of the suit and wished it away while the claimant persisted. Equitable discretion to set aside ex parte decisions exists to relieve accident or excusable mistake, not to assist deliberate obstruction or delay.

p. 4

Legal principles established

#
  • A litigant cannot rely on the right to be heard where he has deliberately avoided court processes
  • Sufficient cause for setting aside ex parte proceedings is a question of fact to be assessed in the circumstances of each case

Court orders

#
  1. 1.The application is dismissed
  2. 2.The Claimant's case closed on 4th May, 2023 shall not be re-opened
  3. 3.The Respondent is granted leave to file its Defence, List and Bundle of Documents and witness statement within 10 days failing which the Respondent's case shall be deemed closed
  4. 4.Costs shall abide the outcome of the suit

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 159(2)(d); Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3A
  • Employment and Labour Relations Court Act, 2011Section 3(1)
  • Civil Procedure Rules, 2010Order 51 Rule 1; Order 51 Rule 15; Order 21 Rule 1

Cases cited (9)

  • Belinda Murai & others V Amos Wainaina
    (1978) KLR
  • Phillip Chemwolo & Another V Augustine Kubede
    (1982 – 88) KLR 103
  • Tom Momanyi Mwamba & 6 others V James Nyachwaya Mwakolo & 3 others
    (2021) eKLR
  • Joswa Kenyatta V Civicon Ltd
    (2020) eKLR
  • Pyramid Hauliers Ltd V James Omingo Nyaanga & 3 Others
    (2019) eKLR
  • Gerald Mwithia V Meru College of Technology & Another
    (2018) eKLR
  • Shah V Mbogo & another
    (1967) EA 166
  • Wachira Karani V Bildad Wachira
    (2016) eKLR
  • Parimal V Veena Bharti
    (2011)
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 3(1) of the Employment and Labour Relations Court Act, 2011; Order 51 Rule 15 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Solanki v Hard Tech Industrial Supplies Ltd (Cause E752 of 2021) [2023] KEELRC 2283 (KLR)", Case Analysis (2023). Cause No E752 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2283/eng@2023-09-28

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