Kudheiha Workers v Caritas Community Hospital

3. The parties canvassed the application by way of written submissions. The Respondent/Applicant’s Submissions 4. The Respondent/Applicant submits that the Notice of Motion herein satises the legal threshold for setting aside a regular judgment. It argues that this Court has unfettered discretion to set aside such judgment where sucient cause has been shown, provided the discretion is exercised judiciously to avoid injustice or hardship occasioned by accident, inadvertence, or excusable mistake. It placed reliance on the cases of Patel v East Africa Cargo Handling Services Ltd [1974] EA 75, Stephen Wanyee Roki v K-Rep Bank Limited & 2 Others [2018] eKLR, Mary Mugo & Others t/a Metpat Enterprises & Another v Obadiah H. Wainaina t/a County Maps Agencies & 2 Others; JD Spot Limited (Interested Party) [2024] KEELC 322 (KLR), and James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR to support this position. 5. The Applicant submits that the Respondent's failure to defend the suit was solely attributable to the omission and negligence of its former advocates, who led a Memorandum of Appearance but failed to le a Response to the Memorandum of Claim or keep the Respondent informed of the progress of the proceedings. It contends that the Respondent only became aware of the judgment after its delivery, whereupon it promptly instructed new advocates and led the present application without unreasonable delay. The Applicant, through counsel, urged the Court not to visit the mistakes of counsel upon an innocent litigant and sought to rely on Kariuki v Wangeci & 7 others (Civil Application E250 of 2023) [2024] KECA 1692 (KLR) and Philip Chemwolo & Another v Augustine Kubende (1986) KLR in support of that proposition. 6. The Respondent/Applicant further submitted that it has an arguable defence that raises bona de triable issues. It maintained that the employees in question were engaged on xed-term contracts which were lawfully terminated in accordance with their terms, and denied that the terminations were motivated by anti-union discrimination or constituted unfair labour practices. 7. According to the Applicant, these contested issues require ventilation through oral evidence and crossexamination and ought to be determined on their merits. It further argues that the Claimant would suer no prejudice incapable of compensation by an award of costs if the judgment were set aside, whereas the Respondent would be denied its constitutional right to a fair hearing under Article 50 of the Constitution if the application were declined. 8. The Applicant nally urges the Court to allow the application in its entirety in furtherance of substantive justice under Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act. The Claimant/Respondent's Submissions 9. The Claimant/Respondent opposed the application and submitted that the Respondent had failed to satisfy the legal principles governing the setting aside of a regular judgment. It argues that the discretion to set aside such a judgment is not automatic but must be exercised judiciously upon demonstration of sucient cause. Reliance was placed on Patel v East Africa Cargo Handling Services Ltd [1974] EA 75 and Pithon Waweru Maina v Thuku Mugiria (1983) eKLR for the proposition that although the Court has wide discretion, the same should not be exercised in favour of a litigant who deliberately delays the course of justice. 10. The Claimant submitted that the Respondent was duly served with the Memorandum of Claim, summons, mention notices and hearing notices through its advocates on record, who had entered https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2512/eng@2026-09-24 2

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appearance in the proceedings. It avers that despite being accorded several opportunities by the Court to le a Response, the Respondent failed to do so. 11. The Claimant contends that the Respondent's explanation attributing the omission to its previous advocates was unsupported by evidence and did not constitute sucient reason to warrant the exercise of the Court's discretion. The Claimant further argued that a litigant bears the responsibility of following up its case and cannot simply shift blame to its advocate after judgment has been entered. 12. The Claimant further submits that the Applicant had not demonstrated the existence of a plausible defence or any triable issues warranting the reopening of proceedings. Counsel maintained that the draft Response consisted of bare denials and did not disclose a bona de defence capable of displacing the Claimant's case. It argues that the application is intended solely to delay the enjoyment of the fruits of a valid judgment after the Respondent had consistently failed to participate in the proceedings despite repeated opportunities granted by the Court. 13. The Claimant therefore urged the Court to nd that the impugned judgment was a regular judgment entered after due service and according to law, dismiss the application with costs and allow the Claimant to proceed with execution of the decree. Analysis and Determination 14. I have considered the application, the supporting adavit, the Replying Adavit in opposition, together with the rival submissions. The issues arising for determination are:i. Whether the judgment of 9th October 2025 was regularly entered; ii. Whether sucient cause has been demonstrated to warrant its setting aside; and iii. Whether the intended Response raises bona de triable issues. Whether the judgment was regularly entered 15. It is not disputed that the Respondent/Applicant was served with the pleading and that its advocates entered an appearance. The Applicant's issue is therefore not want of service, but that although its former advocates entered appearance, they failed to le a Response and further failed to keep it updated of the progress of the proceedings. 16. For the foregoing reason, I will treat the judgment of 9th October 2025 as a regular judgment, rather than an irregular one as it was entered against a party who had been served and was well aware that the suit was in court. 17. The Court of Appeal in James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] KECA 470 (KLR), explained the distinction between regular and irregular default judgments and armed that, in the case of a regular judgment, the Court exercises a discretionary jurisdiction guided by the circumstances of the case. 18. The fact that the judgment was regular does not, however, render the Court powerless to intervene, as was held in Tree Shade Motors Ltd v D.T. Dobie & Company (K) Ltd & Another [1998] KECA 40 (KLR), where the Court stated that even where service was proper, the Court may set aside a regular default judgment where the draft defence discloses a reasonable defence or triable issue. 19. The discretion to set aside a regular judgment is wide, but not arbitrary. The classical statement remains that of Harris J. in Shah v Mbogo & Another [1967] EA 116, namely that the discretion is intended https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2512/eng@2026-09-24 3

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to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, and is not intended to assist a litigant who has deliberately sought to obstruct or delay the course of justice. 20. Similarly, in Patel v East Africa Cargo Handling Services Ltd [1974] EA 75, the Court emphasized that the principal concern is to do justice to the parties and that, in the case of a regular judgment, the Court will ordinarily require satisfaction that there is a defence on the merits before setting it aside. Further, the question is not whether the proposed defence will ultimately succeed, but whether it raises an issue deserving ventilation at trial. Whether sucient cause has been demonstrated to warrant setting aside of the judgment. 21. The Applicant attributes the default to the negligence on the part of its former advocates. It states that the advocates entered appearance but thereafter failed to le a Response or keep it informed of the proceedings, and that the Applicant only became aware of the judgment after it had been delivered. The Claimant, on its part, argues that the Applicant cannot escape responsibility merely by blaming its advocates and that a litigant has an obligation to follow up on its case. 22. The proposition that a litigant should not ordinarily be punished for mistake of counsel is well established. In Philip Keipto Chemwolo & Another v Augustine Kubende [1986] KECA 87 (KLR), the Court of Appeal emphasized that mistakes and blunders will inevitably occur in litigation and that the existence of a mistake does not, without more, justify shutting a party out of a hearing on the merits. 23. More recently, the Court of Appeal in Kariuki v Wangeci & 7 Others [2024] KECA 1692 (KLR) reiterated that the Court must consider the circumstances leading to the procedural default rather than mechanically punishing a litigant for the conduct of counsel. 24. This principle does not, however, create an automatic entitlement to indulgence. Where the material demonstrates that the litigant itself was indolent, was aware of the proceedings and deliberately failed to participate, the Court is entitled to decline the application. The court is therefore called upon to assess the Applicant's conduct in its totality. 25. In the present case, it is evident that the Respondent/Applicant did not simply ignore the proceedings from inception, having instructed advocates who entered appearance on its behalf. The default complained of is principally the advocates' failure to le a Response and prosecute the defense. 26. The record further shows that the Applicant moved the Court approximately one month after delivery of the judgment through the instant application. This period cannot, in my view, be properly characterized as inordinate. 27. I am therefore persuaded that the explanation advanced is suciently plausible to warrant consideration of the matter on its merits. Whether the intended defence raises triable issues 28. The second consideration is whether the proposed Response raises a bona de defence. The Applicant's proposed defence is that the employees in question were engaged on xed term contracts and that their contracts were terminated in accordance with their terms. It further denies that the termination was motivated by anti-union discrimination or constituted an unfair labour practice. 29. These, in my view, are not matters which can properly be dismissed as mere technicalities. The Claimant's case raises questions concerning the reason for the termination and alleged anti-union discrimination. The Applicant, on the other hand, proposes to demonstrate that the employment relationships were xed-term engagements that ended in accordance with their contractual terms. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2512/eng@2026-09-24 4

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30. Whether that defence will ultimately succeed is not the issue at this stage. The test is whether it raises an issue which calls for investigation at trial. The Court of Appeal in Tree Shade Motors Ltd v D.T. Dobie & Company (K) Ltd & Another made it clear that once a draft defence is placed before the Court, the Court should examine it to determine whether it discloses a reasonable defence, and if it does, leave to defend should ordinarily follow. 31. In light of the foregoing, I nd that the proposed defence raises at least one bona de triable issue, which cannot satisfactorily be determined merely from the pleadings, but is properly suited for determination upon evidence. 32. In whole, I nd the Respondent/Applicant’s Motion merited, and I proceed to make the following orders: - 33. a. That leave be and is hereby granted to KDS & Company Advocates to come on record for the Respondent/Applicant. b. That the ex parte judgment delivered on 9th October 2025 and all consequential orders arising therefrom be and is hereby set aside. c. That the Respondent is granted leave to le and serve its Response to the Memorandum of Claim, together with its witness statements and documents, within fourteen (14) days from the date hereof. d. That the Claimant shall be at liberty to le and serve any consequential documents within fourteen (14) days upon service. e. That the matter shall thereafter proceed to hearing on the merits and on a priority basis. f. That the Respondent/Applicant shall bear the costs of this application, and which costs shall be in the cause. It is so ordered. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. C. N. BAARI JUDGE Appearance: Ms. Mwendwa Present for the Claimant/Respondent Mr. Kipruto Present for the Respondent/Applicant Ms. Esther S-C/A https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2512/eng@2026-09-24 5

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