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ELRCAllowedCause No E831 of 2021· [2025] KEELRC 1333 (KLR)

Ng ' ang' a v Africa Film & TV Talent Training Institute (Cause E831 of 2021) [2025] KEELRC 1333 (KLR)

Employment and Labour Relations Court
8 May 2025
CBC. N. Baari
1,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court set aside an ex-parte judgment, ruling a party shouldn't lose a case because of its lawyer's mistake.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (C. N. Baari, J) determined a motion dated 27th February 2024 by the Respondent seeking to set aside the ex-parte/interlocutory judgment entered against it on 8th November 2022 for failure to file a response to the Claimant's claim, and for leave to file its response out of time. The Respondent attributed the default to inadvertent mistake of counsel, invoking Articles 50 and 159(2)(d) of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act. The Claimant, Edwin Gacuca Ng'ang'a, opposed through a replying affidavit, contending that summons were served, appearance was entered on the e-filing platform without payment of fees, and that the Respondent and successive advocates were indolent - coming on record in January 2023 yet taking nearly a year to discover the default judgment, and failing to file documents even after being granted time at a mention on 6th October 2023. Applying Shah v Mbogo on the purpose of the discretion, the Mateta Musinga decision on breach of natural justice, and Lolwerikoi and CFC Stanbic on not visiting counsel's mistakes on litigants, the court allowed the motion. It set aside the decision to proceed undefended on formal proof, granted leave to file the draft response out of time upon payment of filing fees, and ordered costs in the cause, grounded on the Respondent's right to be heard under Article 50.

Key legal issues

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Whether the ex-parte/interlocutory judgment entered on 8th November 2022 should be set aside and the Respondent allowed to defend the claim

Holding

Allowed. The failure to file a response was attributable to counsel's mistake, and the Respondent's right to be heard under Article 50 warranted setting aside the undefended formal proof and granting leave to file a response out of time.

Reasoning

The court relied on Shah v Mbogo on the purpose of the discretion, Mateta Musinga on natural justice, and Lolwerikoi and CFC Stanbic on not visiting counsel's mistakes on litigants. Noting the prior advocates ceased acting on 1st February 2022, the court weighed the Respondent's right to be heard under Article 50 and the overriding objective against the Claimant's complaint of indolence, and allowed the motion in the interest of justice.

p. 3

Legal principles established

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  • The discretion to set aside ex parte proceedings is to be exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist one who deliberately obstructs or delays the course of justice.
  • A decision made without hearing a party breaches the rules of natural justice and is null and void ab initio.
  • A litigant should not be punished for the mistake or negligence of his advocate.

Court orders

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  1. 1.That decision to have this matter proceed undefended on formal proof be and is hereby set aside/vacated
  2. 2.That the Respondent be and is hereby granted leave to file its response to the Claimant's claim out of time, and the draft response filed herewith, is deemed duly filed and served upon payment of the requisite filing charges /fees
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (4)

  • Shah v Mbogo & Another
    [1967] EA 116
  • Republic v Minister for Lands & another Ex-Parte Catherine Mateta Musinga
  • Lolwerikoi v Cabinet Secretary, Ministry of Agriculture, Livestoc & Fisheries & another
  • CFC Stanbic Limited v John Maina Githaiga & another
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, Articles 50 and 159(2)(d) of the Constitution of Kenya, 2010

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, "Ng ' ang' a v Africa Film & TV Talent Training Institute (Cause E831 of 2021) [2025] KEELRC 1333 (KLR)", Case Analysis (2025). Cause No E831 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1333/eng@2025-05-08

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