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ELRCDismissedNot stated in excerpt· [2024] KEELRC 2407 (KLR)

Ndibo & 2 others v Rezial Limited (Employment and Labour Relations Cause E480 of 2022) [2024] KEELRC 2407 (KLR)

Employment and Labour Relations Court
3 October 2024
995 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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An employer's attempt to overturn a default judgment failed because it attacked the judgment without also challenging the earlier order certifying the case undefended.

What this practically means

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Executive summary

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The Respondent/Applicant moved the court by application dated 26th February 2024 seeking stay of execution of the decree, setting aside of the judgment read on 16th November 2023, cross-examination of the process server Brian Mutinda Kioli, and unconditional leave to file its defence. It argued it was never served with Summons to Enter Appearance and that it has a defence on the merits. The Claimants opposed, asserting service was effected both physically and electronically, rendering the decision regular. Manani J framed the test: non-service obliges the court to set aside a resulting decision as of right; where service was proper, setting aside is discretionary and requires demonstration of a valid defence. The court observed that the question of service had been raised before the Deputy Registrar on 25th April 2023, who was satisfied service was proper and certified the cause to proceed by formal proof as an undefended cause. The formal proof proceedings culminating in the impugned judgment were premised on that certification. Crucially, the Applicant had not sought to set aside the order of 25th April 2023, and the court could not do so suo moto. Even if the judgment were set aside, the certification order would remain on record, barring the filing of a defence. The court likened the Applicant's approach to demolishing a building by removing its windows without touching its foundation, and declined the application as an exercise in futility, making no order as to costs.

Key legal issues

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01

Whether the default judgment of 16th November 2023 could be set aside without impugning the order of 25th April 2023 certifying the cause as undefended

Holding

No - the application was improperly founded and dismissed as an exercise in futility

Reasoning

The judgment of 16th November 2023 rested on the proceedings and orders of 25th April 2023 by which the Deputy Registrar certified the cause undefended after finding service proper. The Applicant sought to set aside only the judgment, not the foundational order. Since courts do not act suo moto, the certification order would remain intact, meaning the Applicant could not file a defence even if the judgment were set aside. The application therefore served no useful purpose.

p. 3
02

Service of Summons to Enter Appearance

Holding

The record showed the issue of service had already been considered and resolved by the Deputy Registrar on 25th April 2023, who found service proper

Reasoning

The court record showed the service question was raised before the Deputy Registrar on 25th April 2023. After considering the record, she was satisfied service was proper and ordered the matter proceed by formal proof as an undefended cause. The formal proof proceedings of 5th June 2023 leading to the impugned judgment were premised on that certification.

p. 2

Legal principles established

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  • Where Summons to Enter Appearance were not served, the court must set aside the resultant decision as a matter of right with no discretion to sustain it.
  • Where service was proper, setting aside is discretionary and requires demonstration of a valid defence.
  • A party seeking to set aside a default judgment must also challenge the foundational order certifying the cause as undefended; courts do not act suo moto.

Court orders

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  1. 1.Application dated 26th February 2024 declined/dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • ELRC Procedure RulesRule 28(3)

Cases cited (1)

  • Mbugua v Sigimo Enterprises Limited & another
    (Environment and Land Case Civil Suit 478 of 2017) [2023] KEELC 22453 (KLR) (19 December 2023) (Ruling)
Jurisdiction invoked
Original employment and labour relations jurisdiction; application under the court's inherent powers (specific enabling provision not stated in the judgment)

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, "Ndibo & 2 others v Rezial Limited (Employment and Labour Relations Cause E480 of 2022) [2024] KEELRC 2407 (KLR)", Case Analysis (2024). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2407/eng@2024-10-03

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