Maisha Steel (EA) Limited v Mwosa (Appeal E27 of 2023) [2024] KEELRC 2373 (KLR)
The bottom line
#A Kenyan court refused to undo an employment judgment the club had ignored until auctioneers arrived, confirming that ignoring court papers is a costly gamble.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial magistrate erred in dismissing the application against the weight of the evidence
- 2.Whether the trial magistrate improperly exercised her discretion
- 3.Whether the trial magistrate erred in failing to give due regard and weight to the failure to call the process server before rendering the decision
- 4.Whether the trial magistrate erred in dismissing the consent entered between the parties to compromise the application dated 13th October, 2022
Key legal issues
#Whether the trial court erred in refusing to record the parties' consent to compromise the application to set aside default judgment
The trial court did not err; a default judgment cannot be set aside by consent of the parties alone without involving the court which entered it
The court held that recording a consent to set aside a default judgment falls within the discretion of the court that entered the judgment. Parties could not, by agreement alone, displace a judgment already delivered. The appellant's assertion that the trial court ought to have allowed the parties to agree was therefore baseless. Article 159's promotion of alternative dispute resolution did not assist where judgment had already been rendered.
Whether the failure to call the process server for cross examination invalidated the affidavit of service
No; the appellant failed to deny the facts of service in its supporting affidavit, and the trial court was entitled to find service was effected
While agreeing that cross-examination of a process server is desirable where service is denied, the court held the appellant ought to have responded to the issues raised in the affidavit of service in its own supporting affidavit. It did not. The process server had given a chronology of events in his affidavit of service, which was not denied, so the court upheld the finding that there was a regular judgment.
Whether the first appellate court could disturb the trial court's discretionary refusal to set aside the default judgment
No; none of the grounds for interfering with a discretionary decision was established
Applying United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd, the court held it could only interfere where the trial judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take relevant ones into account, or was plainly wrong. None was demonstrated. The application was also filed five months after the ruling, unexplained, and without a draft defence.
Whether the orders sought were moot because the decretal sum had been paid
The decretal sum had already been paid to the Respondent, so setting aside the judgment would be futile
The Respondent submitted that the judgment sought to be set aside had already been executed and the decretal sum paid. The court accepted that the court should not give orders in futility where the issue has since been resolved, reinforcing the dismissal of the appeal.
Legal principles established
#- A default judgment cannot be set aside by consent of the parties alone without the involvement of the court which entered it; recording such a consent is within the discretion of the court
- Where service is denied, the process server should be put into the witness box and an opportunity of cross examination given to those who deny the service
- A party alleging non-service should respond to the issues raised in the affidavit of service in its supporting affidavit, apart from examining the process server
- A first appellate court will only disturb a discretionary decision of the trial court on the established grounds (misdirection in law, misapprehension of facts, wrong considerations taken or omitted, or a plainly wrong decision)
- The court should not give orders in futility where the issue has since been resolved
Court orders
#- 1.The appeal is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court at Ruiru
- Employment Cause No. E010 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over appeal against the Ruling of the Principal Magistrate in Ruiru Employment Cause No. E010 of 2021
Relief refused
#Setting aside the ex-parte judgment delivered on 10th May, 2022
The judgment was regular; the appellant was properly served, never disputed service in its supporting affidavit, filed the application five months after the ruling without explanation and without a draft defence
Unconditional leave to defend Employment Cause No. E010 of 2021
Follows from dismissal of the appeal against the refusal to set aside the default judgment
Reversion of the matter to the Senior Principal Magistrate's Court at Ruiru before a magistrate other than C.K Kisingiani
Follows from dismissal of the appeal
Costs
The appeal is dismissed with no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
no consent was recorded by parties since a default judgment could not be set aside by consent by parties alone without involving the court which entered it. The same consent which parties wanted to enter into was within the discretion of the court hence the Appellant's assertions that the trial court ought to have allowed them agree was baseless.
The court agrees with the Appellant that if the fact of service was denied, it was desirable that the process server be put into the witness box and an opportunity of cross examination be given to those who deny the service.
The court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to sufier; whether on the whole it is in the interest of justice to set aside the default judgment, among other.
The Appellant never attached any draft defence to enable the trial magistrate determine if the defence raised triable issues. The same application was filed five months after the court's ruling and the Appellant did not explain why they took long to make their application to set aside the court's ruling.
This therefore means the court should not give orders in futility if the issue has since been resolved.
Consequently, I find no merit in this appeal. The same is hereby dismissed with no orders as to costs.
Issues in the judgment
#The judgment refers to the application dated 13/10/2022 as seeking to set aside a 'regular ex parte judgment' while the appellant characterised it as an irregular judgment; the court's own reasoning also shifts between describing service as disputed and undisputed, stating at one point that there was 'no evidence that service was ever efiected' (per appellant) yet holding the Appellant was properly served
The court states the Appellant 'never disputing service in his supporting afidavit' after the process server gave the chronology, but earlier records the Appellant sought to cross-examine the process server 'to verify the contentions set out in his afidavit of service', and the Respondent submitted the Appellant abandoned that need
The judgment does not set out the names of the parties; it refers throughout only to 'the Appellant' and 'the Respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maisha Steel (EA) Limited v Mwosa (Appeal E27 of 2023) [2024] KEELRC 2373 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 14th March, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2373/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.