[2018] KEELRC 1923 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CAUSE NO 805 OF 2016

DAVID NJOGU KIMEMIA......................................................................CLAIMANT

VS

KENYA ASSOCIATION OF PROFESSIONAL COUNSELLORS..................RESPONDENT

RULING

1. In this application, the Respondent seeks orders to set aside an ex parte judgment entered by my brother Makau J on 1st December 2017. The Respondent also seeks leave to defend the Claimant’s claim. The application is documented by a Notice of Motion under certificate of urgency dated 20th April 2018 and filed in court on even date.

2. The application, which is supported by an affidavit sworn by the Respondent’s Executive Director, Elias Gikundi is based on the following grounds:

a. That Notice of Summons and Memorandum of Claim were not properly served contrary to order 5 Rule 3;

b. That the Claimant served the wrong person, one mike Wetoyi, a cleaner who was not authorized to receive court process on behalf of the Respondent;

c. That the said Mike Wetoyi did not inform or bring the Summons to the attention of the Executive Director. Wetoyi did not understand the nature of the documents he received;

d. That the ex parte judgment against the Respondent was entered due to no mistake or negligence of the Respondent;

e. That the Respondent has a good, valid and bona fide defence to the Claimant’s claim with triable issues;

f. That it is necessary for the Court to exercise its discretion in the interest of justice and set aside the ex parte judgment;

g. That the requirement of justice for all parties would be better met if the Respondent was given a chance to defend the suit and if the case is heard and determined on merit;

h. That it is in the interest of justice that the orders sought be granted.

3. In his affidavit in support of the application, the Respondent’s Executive Director depones that Mike Wetoyi, who received the Summons and Memorandum of Claim in this case did not notify him of the said court process.

4. The Claimant’s response is contained in his own replying affidavit sworn on 10th May 2018. He depones that upon entry of judgment, his Advocates notified the Respondent of the judgment by letter dated 3rd February 2018. He adds that prior to filing suit, his Advocates had written a demand letter dated 8th August 2016 which was not responded to until 17th October 2016, a day after service of Notice of Summons upon the Respondent.

5. The issue for determination in this application is whether the Respondent has made out a case for setting aside the ex parte judgment entered on 1st December 2017. The law on this issue is well articulated in Shah v Mbogo & another [1967] EA 116 as follows:

“The court’s discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice.”

6. More recently and closer home, in Morris & Company Limited v Victoria Minerals & Chemicals Limited & another [2007] eKLR, Waweru J held that in exercising its discretion to set aside an ex parte judgment, the Court should consider each case on its facts and circumstances.

7. In the instant case, service was effected on an Office Assistant who was not authorized to receive court process. Further, the averment by the Respondent’s Executive Director that he had no notice of the case prior to entry of judgment was not debunked by any contrary evidence.

8. As to the question whether the Respondent has a meritorious defence to the claim, I am guided by the Court of Appeal decision in Patel v East Africa Cargo Handling Services Ltd [1974] EA 75 to the effect that defence on merits does not mean a defence that must succeed. All that is required is to have a defence that raises triable issues.

9. In the circumstances of this case therefore, the Court is satisfied that there are valid grounds for setting aside the ex parte judgment entered against the Respondent on 1st December 2017. The said judgment is therefore set aside and the Respondent granted leave to defend the claim.

10. The costs of this application will abide with the outcome of the retrial.

11. Orders accordingly.

DATED SIGNED AND DELIVERED AT MOMBASA THIS 31ST DAY OF MAY 2018

LINNET NDOLO

JUDGE

Appearance:

Mr. Njoroge for the Claimant

Mr. Mwathi for the Respondent