[2017] KEELRC 363 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO.1126 OF 2016

FELISTER NDUKU NZAKU .......................... CLAIMANT

VERSUS

JOYCE WAIRIMU GITAU ........................... RESPONDENT

RULING

The respondent by application dated 14th June, 2017 is seeking for orders that judgement entered against the respondent on 15th December, 2016 and all consequential orders thereof be set aside and the respondent be allowed to defend suit. That the draft defence be admitted as it raises good issues in defence to the claim and if considered, there will be justice in this matter.

The application is supported the affidavit of the respondent and on the grounds that summons herein were never served upon the respondent so as to enter appearance and defend the suit. The judgmenet thus entered is irregular and should be set aside to allow the respondent defend the claim as there is a good defence.

The stay of execution commenced vide judgement of 15th December, 2016 should be stayed to allow the respondent argue her case which has high chances of success.

The respondent also avers in her affidavit in support of the application that she never employed the claimant and the claim based on employer and employee against her has no merits and she should be allowed to file defence to state her case. As the claimant has commenced execution, if allowed to proceed such will negate the defence and thus should be stayed.

In response the claimant filed her Replying Affidavit and avers that she was employed by the respondent and upon termination of her employment filed suit. In 2016 the claimant accompanied the process server to Riruta, Kabiria at the residence of the respondent and found the respondent weeding around her compound. There was service and returns were filed to this effect. The respondent failed to enter appearance or file a defence.

The claimant also avers that she received a mention notice herein and accompanied the process server to the respondent residential premises to effect service but in utter disrespect to the same, she refused and ignored to attend. The respondent has been at all-time aware of these proceedings but opted to ignore the same. The current application is filed to frustrate the claimant’s efforts to get justice.

The claimant also filed an affidavit sworn by Charles Mwanzi a Process Server who effected service upon the respondent and to confirm that indeed there was service herein and the respondent was aware of the on-going proceedings.

Both parties made their oral submissions in court.

Determination

On 3rd November, 2016 the matter herein came for mention to taken hearing dates. The respondent was absent. On record is an Affidavit of Service filed to confirm that the respondent was served but did not attend. The respondent has not challenged this service save that the summons herein were never served on her.

The court, being satisfied that the respondent had been served directed hearing on 14th December, 2016. The court, on its own motion also directed the Deputy Regist4rar of the Court to have the Court process Server effect service upon the respondent. This was done and returns filed vide Affidavit of Service filed herein by Charles Mwangi. These returns have not been challenged by the respondent.

I have gone back to the Affidavit of Service and matters set out by the process server Mr Mwangi. I note this officer of the court went at great length to ensue service and even sought the service of the police officers near the respondent’s residence so as to ensure the respondent was aware of proceedings herein.

It is trite that when the court is satisfied that there is service upon a party over matters on-going in court and which requires a party to attend but such party fails to attend and such non-attendance is found to be deliberate, justice demands that such a party cannot enjoy at equity. To file application to set aside a judgmenet that is regularly entered and there are valid orders is not justice.

The respondent in submissions admit that she was known to the claimant and even borrowed a sum of kshs.100,000. 00 which amount had to be repaid through the intervention of Kiuo Cha Sheria. I take it from this evidence that the claimant and respondent are persons who know each other very well and have gone to the extent of borrowing monies form each other. Thus the question of service upon the respondent was done to the right party and the person of the respondent. there cannot be any mistake that the claimant is a person well known to the respondent and when the claimant accompanied the process server to effect service, such was served upon the respondent at her residence where the claimant used to reside before here termination.

Justice cannot therefore wait for a party for deliberately fails to attend court so as to punish a party who on a good claim has attended court and obtained a valid judgement. There must therefore be sufficient and good reasons for the court to set aside such judgement.

In Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd versus Augustine Kubede (1982-1988) KAR page 1036,the Court of Appeal while dealing with an appeal against refusal to set aside exparte judgment in default stated:

The court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties. Kimani V MC Conmell (1966) EA 545 where a regular judgment had been entered the court would not usually set aside the judgment unless it was satisfied that there is a triable issue.

In Jomo Kenyatta University of Agriculture and Technology V Musa Ezekiel Oebal (2014) e KLR CA 217/2009,the Court of Appeal stated that the object of clothing the court with discretion to set aside judgment obtained exparte is To avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice as held in Shah Versus Mbogo & Another (1967) EA 116.

Therefore even where there is a draft defence, the court must look at the circumstances of each case and apply its discretion judicially. Where it is apparent that a party has acted to avoid justice by a deliberate action not to attend court, orders seeking to set aside a valid judgmenet shall not issue. See Kenya

Broadcasting Corporation v National Authority for The Campaign against Alcohol and Drug Abuse (NACADA) [2015] eKLR.

In this case, I find by the conduct of the respondent, the court having gone out of its way to ensure service by all means possible, the respondent deliberately and without good reason or basis failed to attend court. She cannot benefit from the same by having the judgement herein regularly entered set aside.

Application dated 14thJune, 2017 is hereby dismissed with costs to the claimant.

Dated and delivered in open court at Nairobi this 21st day of July, 2017.

M . MBARU JUDGE

In the presence of:

Lilian Njenga and David Muturi: Court Assistants

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