Nyaachi v Rembo Shuttle Savings & Credit Co-operative Society (Cause 746 of 2017) [2023] KEELRC 3192 (KLR)
The bottom line
#Kenya's Employment Court set aside a default judgment because a lawyer abandoned the case, ruling that a client shouldn't suffer for an advocate's mistake.
What this practically means
#Executive summary
#Key legal issues
#Whether the default judgment delivered on 16th March, 2023 was irregular for non-compliance with Order 10 rule 7 of the Civil Procedure Rules
The judgment was not irregular; Order 10 rule 7 applies to interlocutory judgment against several defendants, and Order 10 deals with non-appearance, default of defence and failure to serve, none of which applied since the applicant filed a defence and participated in the proceedings.
The court held that Order 10 rule 7 governs interlocutory judgments against several defendants, and only one defendant existed here. Order 10 generally concerns non-appearance, default of defence and failure to serve, none of which applied because the applicant had filed a defence and participated up to 16th November, 2021. The applicable provision was Order 12, which empowers the court to set aside or vary a judgment upon such terms as may be just.
Whether service of notices was proper such that the applicant was aware of the proceedings
Service was proper. All notices were served on the applicant's advocate on record who was on the record and had not filed a notice to cease acting; the applicant was thus deemed aware of the proceedings.
The court found it common ground that the applicant's counsel ceased participating after 16th November, 2021 but never filed an application to cease acting. Counsel for the Claimant therefore could not be expected to serve the applicant personally, and was held to have discharged his obligation as required by law by serving the advocate on record.
Whether the applicant's non-participation was attributable to its counsel and whether the judgment should be set aside
Yes; the non-participation was caused by the counsel's abandonment of the suit without notice, an error not attributable to the applicant, and the court exercised its discretion under Order 12 rule 7 to set aside the judgment and order a de novo hearing.
The court traced the history of the suit and found the applicant's advocate abandoned the matter without notice to the court or client, denying the applicant the opportunity to present its defence filed on 7th June, 2017. Applying the principle that counsel's mistakes should not be visited on the client, and considering the reasons for non-attendance together with the existence of a defence, the court found a sustainable case for exercise of discretion in the applicant's favour.
Legal principles established
#- A litigant represented by an advocate is generally bound by the acts or omissions of that advocate in the course of the representation, but mistakes or errors of an advocate ought not as a general rule be visited on the client because the suit belongs to the client.
- The discretion to set aside an ex parte judgment is intended to avoid injustice and hardship from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructs or delays the course of justice.
- In an application to set aside an ex parte judgment, the court must consider both the reasons for non-attendance and whether the applicant has a defence raising triable issues.
Court orders
#- 1.The judgment delivered on 16th March, 2023 and all consequential orders against the Respondent/Applicant are set aside
- 2.The Claimant's suit filed on 19th April, 2017 shall be heard de novo
- 3.The Respondent/Applicant has leave to file an amended Defence and comply with Order 11 of the Civil Procedure Rules, 2010
- 4.No order as to costs
- Jurisdiction invoked
- Order 12 rule 7 of the Civil Procedure Rules, 2010 (inherent discretion to set aside default judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaachi v Rembo Shuttle Savings & Credit Co-operative Society (Cause 746 of 2017) [2023] KEELRC 3192 (KLR)", Case Analysis (2023). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3192/eng@2023-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.