Potters House Academy v Kemer (Employment and Labour Relations Appeal E021 of 2021) [2025] KEELRC 1263 (KLR)
The bottom line
#Kenya's Employment Court set aside a Kshs 1.29 million default judgment, ruling a school deserved its day in court because its defence raised genuine triable issues.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate erred in dismissing the application to set aside the ex parte judgment and stay execution
The appeal was allowed; the ruling and the ex parte judgment were set aside and the suit remitted for hearing inter-parties because the draft defence raised triable issues and the court could not resolve the conflicting versions on service.
The first appellate court re-evaluated the record, applying the principles in Pithon Waweru Maina and Toshike Construction: the discretion to set aside an ex parte judgment exists to do justice and avoid injustice from accident or excusable mistake, but not to assist a party deliberately obstructing justice. The process server's return indicated service acknowledged but unsigned, while the Appellant denied service; the court could not determine whether service occurred. Given the triable issues raised in the draft defence and the right to be heard, the dismissal of the application was set aside.
Legal principles established
#- A party should not be condemned unheard; where a draft defence raises triable issues and service is disputed, it is not in the interests of justice to deny the party an opportunity to be heard.
Court orders
#- 1.The Ruling of the trial Court delivered on November 17, 2021 is set aside
- 2.The Appellant's application dated 18th November 2020 is allowed
- 3.The Judgement of the Trial Court dated 6th October 2020 stands set aside and/or vacated
- 4.The original lower court file to be remitted back to the Chief Magistrate's Court at Eldoret for expeditious hearing of the suit inter-parties
- 5.The Appellant to pay the Respondent Kshs. 50,000 as throw away costs
- On appeal from
- Chief Magistrate's Court at Eldoret
- Jurisdiction invoked
- First appellate jurisdiction over the ruling of the trial magistrate (Employment and Labour Relations Court appeal against subordinate court ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Potters House Academy v Kemer (Employment and Labour Relations Appeal E021 of 2021) [2025] KEELRC 1263 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 22nd November 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1263/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.