Ndibo & 2 others v Rezial Limited (Employment and Labour Relations Cause E480 of 2022) [2024] KEELRC 2407 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
No - the application was improperly founded and dismissed as an exercise in futility
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.
Service of Summons to Enter Appearance
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
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.
Legal principles established
#- 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
#- 1.Application dated 26th February 2024 declined/dismissed
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.