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ELRCAllowedCause E908 of 2022

Kudheiha Workers v Caritas Community Hospital

Employment and Labour Relations Court
24 September 2026
2,242 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court set aside a default judgment against a hospital, ruling that a served party can still get a second chance if it has a real defence.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nairobi (C. N. Baari, J) determined the Respondent's Notice of Motion dated 11th November 2025 seeking leave for KDS & Company Advocates to come on record, setting aside of the ex parte judgment delivered on 9th October 2025, leave to file a Response out of time, and reopening of the hearing. The Claimant, a trade union, opposed, contending that the judgment was regular after due service, that blame on former advocates was unsupported, and that the draft Response was bare denials. The court framed three issues: regularity of the judgment, sufficient cause, and triable issues. It held the judgment regular since the Respondent had been served and its advocates had entered appearance, but held that regularity does not render the court powerless. Relying on Shah v Mbogo, Patel, Chemwolo, Kariuki v Wangeci and Tree Shade Motors, it found the default attributable principally to the former advocates' failure to file a Response, that the application filed about one month after judgment was not inordinately delayed, and that the defence of lawful termination of fixed-term contracts and denial of anti-union discrimination raised at least one bona fide triable issue. The court allowed the motion: leave to come on record was granted, the ex parte judgment and consequential orders were set aside, the Respondent was granted fourteen days to file its Response, witness statements and documents, the Claimant fourteen days for consequential documents, the matter was to proceed to hearing on the merits on a priority basis, and the Respondent was to bear the costs of the application, costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the judgment of 9th October 2025 was regularly entered
  2. 2.Whether sufficient cause has been demonstrated to warrant its setting aside
  3. 3.Whether the intended Response raises bona fide triable issues

Key legal issues

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01

Whether the ex parte judgment was regular or irregular

Holding

The judgment was regular because the Respondent had been served and its advocates had entered appearance; the complaint was only the advocates' failure to file a Response.

Reasoning

Service of the pleading was not disputed and appearance had been entered. The Applicant's grievance was not want of service but that its former advocates failed to file a Response and keep it updated. A judgment entered against a served party aware of the suit is regular, attracting discretionary rather than mandatory setting-aside jurisdiction.

p. 3
02

Whether sufficient cause was shown to set aside the regular judgment

Holding

Yes - the default was principally the former advocates' failure to file a Response, the application was filed about one month after judgment (not inordinate delay), and the explanation was sufficiently plausible.

Reasoning

The court weighed the principle that mistakes of counsel should not be visited on innocent litigants against the rule that blame-shifting is not automatic indulgence. The Respondent had not ignored proceedings from inception, having instructed advocates who entered appearance, and moved court within about a month of judgment, which was not inordinate delay.

p. 4
03

Whether the intended Response raises bona fide triable issues

Holding

Yes - the defence that employees were on fixed-term contracts lawfully terminated, and denial of anti-union discrimination, raised at least one bona fide triable issue requiring evidence.

Reasoning

The proposed defence of lawful termination of fixed-term contracts, and denial of anti-union discrimination or unfair labour practice, could not be dismissed as mere technicality. Following Tree Shade Motors, once a draft defence discloses a reasonable defence, leave to defend should ordinarily follow; success at trial is not the test.

Legal principles established

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  • A regular default judgment may still be set aside where the draft defence discloses a reasonable defence or triable issue.
  • The discretion to set aside a regular judgment is wide but not arbitrary, aimed at avoiding injustice from accident, inadvertence or excusable mistake, not at assisting deliberate obstruction or delay.
  • At the setting-aside stage the test is whether the proposed defence raises an issue deserving investigation at trial, not whether it will ultimately succeed.

Court orders

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  1. 1.Leave granted to KDS & Company Advocates to come on record for the Respondent/Applicant
  2. 2.The ex parte judgment delivered on 9th October 2025 and all consequential orders arising therefrom set aside
  3. 3.Respondent granted leave to file and serve its Response to the Memorandum of Claim, together with witness statements and documents, within fourteen (14) days
  4. 4.Claimant at liberty to file and serve any consequential documents within fourteen (14) days upon service
  5. 5.Matter to proceed to hearing on the merits and on a priority basis
  6. 6.Respondent/Applicant to bear the costs of the application, such costs to be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Discretionary jurisdiction of the Employment and Labour Relations Court to set aside a regular default judgment, exercised under Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the ex parte judgment delivered on 9th October 2025 and all consequential orders arising therefrom be and is hereby set aside.
p. 5Final orders - setting aside of ex parte judgment
The discretion to set aside a regular judgment is wide, but not arbitrary.
p. 3Nature of the discretion to set aside a regular judgment
the question is not whether the proposed defence will ultimately succeed, but whether it raises an issue deserving ventilation at trial
p. 4Test for triable issues at the setting-aside stage
This period cannot, in my view, be properly characterized as inordinate.
p. 4Delay of approximately one month after judgment is not inordinate

Issues in the judgment

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minor

James Kanyiita Nderitu citation given as [2016] eKLR in submissions but [2016] KECA 470 (KLR) in the court's analysis.

minor

Philip Chemwolo cited with differing citations ((1986) KLR vs [1986] KECA 87 (KLR)) in submissions and analysis.

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, "Kudheiha Workers v Caritas Community Hospital", Case Analysis (2026). Cause E908 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2512/eng@2026-09-24

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