Njiiri v National Police Service Commission (Employment and Labour Relations Appeal E007 of 2024) [2025] KEELRC 1133 (KLR)
The bottom line
#A Kenyan court upheld the setting aside of an Kshs 11.2 million default judgment against an employer, but ordered it to pay Kshs 40,000 in throw-away costs to the worker.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate erred in setting aside the default judgment
No error; the setting aside was in order as justice is better served when all parties are heard on merit, and the draft defence raised a good defence despite the magistrate's failure to consider it expressly
The court distinguished regular from irregular default judgments, applying Patel and James Kanyiita Nderitu. Although the trial magistrate erred by not considering whether the draft defence raised triable issues, the Respondent's averments (disciplinary proceedings and lawful termination) amounted to a good defence. The principle of being heard on merit justified upholding the setting aside.
Whether the Appellant was entitled to thrown away costs
Yes; the Appellant was entitled to thrown away costs and Kshs. 40,000 was awarded
Throw away costs cater for substantial indemnity for wasted time duplicated when a trial is rescheduled. Having been given an opportunity to ventilate its case through the impugned ruling, the Respondent's default entitled the Appellant to thrown away costs, awarded in the court's discretion under Section 27 of the Civil Procedure Act.
Legal principles established
#- For a regular default judgment, the court will not usually set aside the judgment unless satisfied there is a defence on the merits raising a triable issue
- The draft defence and triable issues must be considered by a court before setting aside a regular default judgment
- Throw away costs are substantial indemnity costs catering for wasted and duplicated time when trial is rescheduled
Court orders
#- 1.Appeal allowed only to the extent that the Appellant is awarded throw away costs of Kshs. 40,000
- 2.Ruling of the trial court delivered on 8th February 2024 setting aside the ex-parte judgment upheld
- 3.Respondent allowed to file a defence to the suit
- 4.Throw away costs to be in addition to the costs of the application as awarded by the trial court
- 5.Trial court file to be returned to the lower court for compliance with requisite procedures under the Civil Procedure Rules and appropriate directions for hearing
- 6.Each party to bear their own costs of the appeal
- On appeal from
- Magistrates' Court (ELRC), Eldoret
- Eldoret CMELRC No. E140 of 2021
- Jurisdiction invoked
- First appeal from the trial court under the Civil Procedure Act and Rules (Order 10 Rule 11, Section 27 Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njiiri v National Police Service Commission (Employment and Labour Relations Appeal E007 of 2024) [2025] KEELRC 1133 (KLR)", Case Analysis (2025). Eldoret CMELRC No. E140 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1133/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.