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ELRCDismissedNot stated in the judgment· [2024] KEELRC 2290 (KLR)

Nyamweya v Chairman, Secretary, Treasurer Imara Daima Adventist Academy (Miscellaneous Case 1304 of 2018) [2024] KEELRC 2290 (KLR)

Employment and Labour Relations Court
25 September 2024
AJAbuodha Nelson Jorum
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to undo a default judgment, ruling that a party who ignores court notices for five years cannot simply blame its lawyer.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 31st January, 2024 in which the Respondent/Applicant, an institution managing a school, sought to set aside a default judgment entered against it on 27th February, 2023, unconditional leave to defend the claim, and a stay of taxation of the bill of costs. The suit by the Claimant/Respondent, filed on 18th August, 2018 for unlawful termination of employment, proceeded to formal proof after the Respondent, though represented since 2018, never filed a defence or attended court. The Applicant argued it had settled the claim out of court by paying Kshs 50,000, that its former advocate assured it the matter would be withdrawn, and that the judgment was served on a departed headteacher. The Claimant countered that the Respondent was served with all notices through its advocates and delayed 9 months after service of the judgment before moving the court. The court applied a three-limb test: the nature of the defence, the period of delay, and prejudice. It found the draft defence a mere denial, the over five years of delay unexplained, and no prejudice warranting relief, holding that litigation must come to an end and that blaming counsel was insufficient. The application was dismissed with costs on 25th September, 2024, delivered virtually by Abuodha Nelson Jorum, Presiding Judge-Appeals Division.

Key legal issues

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01

Whether the default judgment entered on 27th February, 2023 should be set aside and the Applicant granted unconditional leave to defend

Holding

Application dismissed; no triable issue, inordinate unexplained delay, and no prejudice to the Respondent since litigation must come to an end

Reasoning

The court considered the nature of the defence, the period of delay and prejudice. The draft defence was a mere denial; the payment of Kshs 50,000 as termination package did not excuse failure to defend. Delay of over 5 years, and 9 months after service of judgment, was unexplained. Notices were served on the Respondent's advocates without action. Blaming counsel was insufficient, and litigation must come to an end.

p. 3
02

Whether the delay in bringing the application was satisfactorily explained

Holding

Delay of over 5 years was not satisfactorily explained; the law aids the vigilant and not the indolent

Reasoning

Judgment was served in May 2023 but the application was only filed on 31st January 2024, about 9 months later. The Claimant demonstrated that invitation letters, mention notices and hearing notices were served on the Respondent's advocates without action. The court found the explanation unsatisfactory.

p. 4

Legal principles established

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  • The court's discretion to set aside ex parte judgment is free, exercised to avoid injustice or hardship, not to assist deliberate obstruction or delay
  • Blaming the advocate on record is not sufficient reason to set aside a judgment after inordinate delay

Court orders

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  1. 1.Application dated 31st January, 2024 dismissed with costs
Jurisdiction invoked
Section 1A, 1B and 3A of the Civil Procedure Act; Rule 17(1), (2) and (3) of the Employment and Labour Relations Court (Procedures) Rules, 2016; Order 10 Rule 11 and Order 42 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyamweya v Chairman, Secretary, Treasurer Imara Daima Adventist Academy (Miscellaneous Case 1304 of 2018) [2024] KEELRC 2290 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2290/eng@2024-09-25

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