Livingstone v Hatari Security Guards Limited (Employment and Labour Relations Cause 2282 of 2017) [2023] KEELRC 2671 (KLR)
The bottom line
#A Kenyan employment court dismissed an attempt to reopen ex parte proceedings because the respondent was properly served with hearing notices but simply failed to attend.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent was properly served with the hearing notice
The court found service was properly effected and acknowledged; the respondent's claim of non-service was not credible
The court record contained affidavits of service showing the respondent's advocates received and acknowledged the mention and hearing notices, including the hearing notice dated 1st November 2022 for the hearing of 24th January 2023, acknowledged on 2nd November 2022. The process server George Nyaora swore an affidavit of service dated 21st November 2022 confirming service. The respondent never received any notice under protest.
Whether sufficient cause exists to set aside the ex parte proceedings and arrest judgment
No sufficient cause was shown; the respondent has been indolent and the application was refused
Applying the test that a respondent must show either improper service or failure to appear due to sufficient cause, liberally construed, the court found the respondent was served and simply failed to participate in proceedings since 2019. The indolence and lack of bona fides disentitled the respondent from the discretionary relief sought.
Legal principles established
#- In setting aside ex parte orders, the court must be satisfied either that the respondent was not properly served with summons or that the respondent failed to appear due to sufficient cause
- "Sufficient cause" should receive a liberal construction to advance substantial justice where no negligence, inaction or want of bona fides is imputable
Court orders
#- 1.The Respondent's Notice of Motion dated 2nd May 2023 is dismissed - the respondent has not shown sufficient reasons to arrest the judgment
- 2.The claimant to file his submissions physically in court by 30th October 2023 together with the affidavit to support his pleadings, as they were not in the court file
- 3.Judgment to be delivered on 9th February 2024
- Jurisdiction invoked
- Not expressly stated; court sits in first instance over the claim, guided by Article 159(2)(d) and Article 48 of the Constitution and Section 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Livingstone v Hatari Security Guards Limited (Employment and Labour Relations Cause 2282 of 2017) [2023] KEELRC 2671 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2671/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.