Gongera v Mount Kenya University (Employment and Labour Relations Cause E958 of 2021) [2023] KEELRC 2713 (KLR)
The bottom line
#Kenya's Employment Court set aside a default judgment after a lawyer's honest scheduling mistake, ordering the employer to pay KShs. 30,000 within 14 days or the judgment returns.
What this practically means
#Executive summary
#Key legal issues
#Whether a bona fide mistake of counsel constitutes sufficient cause for setting aside a regular default judgment
Yes - the court was persuaded the mistake was bona fide and should not be visited on the Respondent, who was entitled to a hearing on the merits
The court categorized the ex parte judgment as a regular default judgment under the James Kanyiita Nderitu parameters since the Respondent was served, entered appearance and filed a preliminary objection but failed to file a substantive response or attend the formal proof hearing. Relying on Itute Ingu, the court held that a bona fide mistake of counsel can attract the court's discretion. Counsel's administrative lapses following the resignation of the firm's Administrative Assistant were held to be a bona fide mistake, censured but not visited on the litigant, with the draft defence raising triable issues and the application brought promptly.
Whether execution before assessment of costs could be permitted
No - the application was dismissed as its substratum fell away upon setting aside the judgment and decree
The court acknowledged its authority under section 12(3) of the ELRC Act and section 94 of the Civil Procedure Act to order execution of a decree before assessment of costs. However, having set aside the ex parte judgment and the consequential decree, there was no longer any decree capable of execution, so the Claimant's application was rendered moot and dismissed with costs in the cause.
Legal principles established
#- A regular default judgment may be set aside under Order 10 rule 11 of the Civil Procedure Rules where the defendant establishes sufficient cause, and a bona fide mistake of counsel can constitute sufficient cause
- In setting aside default judgment, the court has unfettered discretion and considers the reason for default, time elapsed, triable issues, prejudice and the interest of justice
Court orders
#- 1.Prayer 3 of the Respondent's Notice of Motion dated 31st July 2023 allowed - the ex parte judgment delivered on 27th July 2023 set aside
- 2.The Respondent to file its response to the Statement of Claim within seven (7) days of the date of the Ruling
- 3.The matter to be granted a hearing date on a priority basis
- 4.The Respondent to pay thrown away costs of KShs. 30,000 to the Claimant within 14 days of the date of the ruling, in default of which the judgment shall revert
- 5.The Claimant's Notice of Motion dated 29th August 2023 dismissed, with costs in the cause
- Jurisdiction invoked
- Sections 3 & 12(3) of the Employment and Labour Relations Court Act, No. 20 of 2011; rule 33 of the Employment and Labour Relations (Procedure) Rules 2016; Order 10 rule 11 of the Civil Procedure Rules 2010; section 94 of the Civil Procedure Act 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gongera v Mount Kenya University (Employment and Labour Relations Cause E958 of 2021) [2023] KEELRC 2713 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2713/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.