Marianne Center Foundation v Mutoro (Employment and Labour Relations Appeal E171 of 2024) [2025] KEELRC 2041 (KLR)
The bottom line
#A Kenyan employer lost its bid to overturn a default judgment because it never actually filed the defence it claimed existed.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause was shown to set aside the ex parte judgment, including the existence of a draft defence raising triable issues
The appeal fails because the alleged draft defence could not be found on the record and no triable issue was disclosed; the trial court's finding stands.
The appellant claimed to have filed a draft memorandum of defence dated 31st August 2023, but a perusal of the record of appeal revealed no such defence, whether filed independently or annexed to the application. Without a defence on record, the court had no basis to assess triable issues or to interfere with the trial court's exercise of discretion. The appellant, having alleged the defence existed, bore the burden of producing it.
Whether the trial court erred in finding the appellant had not instructed an advocate
The court found the trial court's finding on lack of instructions incorrect, since a memorandum of appearance had been filed by Alex Kibunja & associates advocates, but this did not alter the outcome.
A memorandum of appearance had been filed on behalf of the appellant, and the respondent had served that firm with its pleadings, showing the appellant was represented. However, even with this correction, the absence of a draft defence and of any disclosed triable issue meant the trial court's ultimate dismissal of the setting-aside application could not be disturbed.
Whether the issue that the contract was signed only by the claimant could be raised on appeal
No - the issue was never canvassed before the trial court and cannot be raised for the first time on appeal.
The appellant sought to rely on the argument that the employment contract was signed solely by the claimant to demonstrate a triable issue. The court held this issue had not been raised or canvassed in the application before the trial court and was therefore of no value on appeal, being a new issue improperly introduced at the appellate stage.
Whether the appeal was defective for failure to attach a certified copy of the decree/order under Section 79B of the Civil Procedure Act and Order 42 Rules 2 and 13
The court did not strike out the appeal on this ground despite the respondent's submissions; it determined the appeal on its merits.
The respondent argued the appeal was incompetent for want of a certified copy of the decree and incomplete record of appeal, citing jurisdictional authority. The court, however, proceeded to consider and determine the appeal on its merits and dismissed it, without making any express finding on the competency objection.
Legal principles established
#- A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial; it need not be one that would succeed.
- An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong, based on misdirection or failure to consider relevant matters.
- An ex parte judgment may be set aside if the defendant demonstrates a reasonable explanation for the default and a valid defence.
- A party alleging that a defence exists on the record bears the burden of producing it before the appellate court; a new issue cannot be raised for the first time on appeal.
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs (each party to bear own costs), to temper justice with mercy given the respondent was let down by his advocates
- 3.30 days stay is granted
- 4.The file is closed
- On appeal from
- Principal Magistrate's Court, Nairobi (MCELRC No. E355 of 2021)
- MCELRC No. E355 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over a subordinate court under the Civil Procedure Act (Section 79B read with Order 42 of the Civil Procedure Rules discussed); Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marianne Center Foundation v Mutoro (Employment and Labour Relations Appeal E171 of 2024) [2025] KEELRC 2041 (KLR)", Case Analysis (2025). Not stated in the judgment (memorandum of appeal dated 10th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2041/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.