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ELRCDismissedNot stated in the judgment as provided· [2025] KEELRC 348 (KLR)

Shiloya v Vintage Africa Ltd t/a Sense of Africa (Cause E311 of 2024) [2025] KEELRC 348 (KLR)

Employment and Labour Relations Court
13 February 2025
LNLinnet Ndolo
1,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to lock out an employer that filed its defence late, ruling that hearing a case on its merits beats strict deadlines.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Linnet Ndolo J, delivered virtually on 13th February 2025) determines a Notice of Motion dated 9th October 2024 in which the Claimant, whose employment was terminated, sought directions that his claim proceed to formal proof as an undefended suit under Rule 31(1) of the ELRC (Procedure) Rules. The Claimant served the Statement of Claim on 12th June 2024; the Respondent entered appearance on 25th July 2024 but did not file a defence within the 28-day period under Rule 29(1). In reply, the Respondent's Chief Financial Officer, Lawrence Njuguna, swore a replying affidavit asserting an intention to defend, explaining that the delay arose because relevant documents had been handed to the police investigating an alleged fraudulent transfer of Kshs. 80,673,324 in which the Claimant was a person of interest. The Respondent simultaneously lodged a Memorandum of Defence and Counterclaim dated 6th November 2024 with a bundle of documents and asked that it be admitted as properly filed. The Court held that Rule 40(3) confers a discretion on whether to lock out a party for expiry of time, that locking out a party who has shown interest to participate is an extreme action, and that procedural rules are handmaidens of justice. Balancing the parties' rights and substantive justice, the Court admitted the out-of-time defence and counterclaim and declined the application with costs in the cause.

Key legal issues

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01

Whether an undefended-suit direction should issue under Rule 31(1)/Rule 40(3)

Holding

The application is declined; the discretion favours admitting the late defence

Reasoning

Rule 40(3) gives the Court discretion whether to lock out a respondent for expiry of time. Locking out a party who has shown interest to participate is an extreme measure. The Respondent had entered appearance, explained the delay (documents with police investigating the fraud), and lodged its defence and counterclaim. Balancing the parties' rights and substantive justice, the Court admitted the defence out of time.

p. 3

Legal principles established

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  • Locking out a party who has shown interest to participate in a matter is an extreme action
  • Rules of procedure are handmaidens and not mistresses of justice; they facilitate rather than hamper the administration of justice

Court orders

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  1. 1.The Claimant's Notice of Motion dated 9th October 2024 is declined
  2. 2.The Respondent's Memorandum of Defence and Counterclaim dated 6th November 2024, together with a bundle of documents, is admitted as duly filed
  3. 3.Costs in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 31(1)
  • Employment and Labour Relations Court (Procedure) RulesRule 29(1)/Rule 21(1) as reproduced
  • Employment and Labour Relations Court (Procedure) RulesRule 40(3)

Cases cited (2)

  • Bai Lin (K) Limited & 2 others v Zingo Investments Limited & another
    [2016] eKLR
  • Microsoft Corporation v Mitsumi Computer Garage Ltd & another
    [2001] eKLR
Jurisdiction invoked
Rule 31(1) and Rule 40(3) of the Employment and Labour Relations Court (Procedure) Rules

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, "Shiloya v Vintage Africa Ltd t/a Sense of Africa (Cause E311 of 2024) [2025] KEELRC 348 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/348/eng@2025-02-13

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