Kasiti v Solo (Cause 261 of 2017) [2024] KEELRC 267 (KLR)
The bottom line
#A Kenyan employment court gave an employer a fresh hearing despite her own negligence, but made her pay costs and cancelled the illegally-started auction of her property.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause was shown for setting aside the ex parte proceedings and judgment
The Court was not persuaded that the Applicant's former advocates lost contact with her or that she was unaware of the hearing date; she lacked diligence in following up her case.
The Court compared the Applicant's claim of lost contact with counsel's statement on 18th October 2021 suggesting she was aware of the hearing date. The Applicant also failed to state what her correct contact address was and what erroneous address was used, which the Court found a vital omission for any candid applicant.
Whether the Applicant has a defence raising triable issues
The Court found that the Applicant's Response and Counterclaim raised triable issues warranting exercise of discretion in her favour.
The Response denied the Claimant's dismissal and underpayment claims; the Counterclaim alleged amounts owed by the Claimant at separation. Considering these against the record, the Court was persuaded the pleadings raised triable issues that should go to trial.
Whether the execution process was regularly initiated
Execution commenced more than one year after judgment without a notice to show cause was incompetent and was set aside.
Judgment was delivered on 15th December 2021 and execution commenced on or about 31st January 2023, more than a year later, triggering Order 22 Rule 18(b). The Claimant gave no explanation for bypassing the notice to show cause requirement, and the process was therefore set aside with auctioneers' charges on the Claimant.
Legal principles established
#- Where judgment is entered without the respondent presenting her case, the respondent has three remedies: setting aside, appeal, or review.
- An applicant seeking to set aside a judgment entered in her absence must demonstrate sufficient reason for failing to attend the hearing.
- The plea that counsel's mistake should not be visited on the client is not automatic and depends on whether the mistake was purely the advocate's and not fermented by the applicant's own conduct.
- Execution commenced more than one year after the decree without a notice to show cause under Order 22 Rule 18 is incompetent and liable to be set aside.
Court orders
#- 1.Leave granted to the firm of Munyendo Mapesa & Co. Advocates to come on record for the Respondent (implied by continuation)
- 2.Proceedings of 21st September 2021 and the judgment and decree dated 15th December 2021 set aside to the extent of allowing a fresh hearing
- 3.Thrown away costs of KShs. 40,000 awarded to the Claimant/Respondent, payable within 45 days, in default of which execution to issue against the Applicant
- 4.The execution process initiated by the Claimant set aside; the Claimant to bear the auctioneers' charges
- 5.The main suit to be heard afresh on a priority basis
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 of the Civil Procedure Rules; Section 3 of the Employment and Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasiti v Solo (Cause 261 of 2017) [2024] KEELRC 267 (KLR)", Case Analysis (2024). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/267/eng@2024-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.