[2017] KEELRC 1876 (KLR)
The court found that, despite the respondent's initial claim of non-service, its counsel conceded that service of summons had indeed been effected and the respondent defaulted in filing a defence within the prescribed time. Given the parties' willingness to compromise, the court exercised its discretion to set aside...
Source-derived case information.
- Citation
- [2017] KEELRC 1876 (KLR)
- Parties
- Claimant: Gabriel Ogola Oluoch; Respondent: Afrika Pearl & Spa Luxury Diani Beach Boutique Hotel
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 763 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- ex parte judgment set aside, conditional on payment of throw away costs and filing of pleadings
- Legal Topics
- Ex Parte Judgment, Setting Aside Judgment, Service of Summons, Throw Away Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Ogola Oluoch
Claimant
Afrika Pearl & Spa Luxury Diani Beach Boutique Hotel
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment should be set aside for lack of service of summons.
- 2 Whether the respondent should be granted leave to defend the suit upon payment of throw away costs.
- 3 Whether the respondent was properly served with summons to enter appearance.
Ratio Decidendi
The court found that, despite the respondent's initial claim of non-service, its counsel conceded that service of summons had indeed been effected and the respondent defaulted in filing a defence within the prescribed time. Given the parties' willingness to compromise, the court exercised its discretion to set aside the ex parte judgment on condition that the respondent pays throw away costs of KES 20,000 to the claimant within 14 days, and files its pleadings within the same period. The court emphasized the overriding objective of doing justice and facilitating a hearing on the merits, while also ensuring that the claimant is compensated for the inconvenience caused by the respondent's...
Court Disposition
ex parte judgment set aside, conditional on payment of throw away costs and filing of pleadings
Orders
- The judgments of the court dated 11.11.2016 are set aside.
- The respondent shall pay the claimant KES 20,000 as throw away costs within 14 days from the date of the ruling, failing which execution shall proceed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 763 OF 2015
GABRIEL OGOLA OLUOCH....................................CLAIMANT
VS
AFRIKA PEARL & SPA LUXURY
DIANI BEACH BOUTIQUE HOTEL……………RESPONDENT
RULING
1. On 11. 11. 2016 I delivered exparte judgment in this case and also in ELRCC No. 765 of 2015 and 799 of 2015. Two days later the respondent (Applicant) brought the Notices of Motion dated 13. 11. 2016 basically seeking for the setting aside of the exparte judgments and leave to defend the suits. The main grounds of the Motions are that the applicant was never served with summons to enter appearance and that she has a defence that raises triable issues.
2. The claimants have opposed the Motions on ground that the applicant had been served with summons and their pleadings but failed to file defence; and that the draft defence annexed to the Motion raises no triable issues and was therefore a waste of judicial time.
3. The Motions came up for hearing on 21. 11. 2016 when the parties agreed to have the Motion in this file proceed as a test case and the outcome to apply to the other two files.
4. In his submissions, counsel for the claimant contended that although he was opposed to the setting aside of the judgment, he nevertheless would conceded on condition that he was paid throw away costs of kshs.30,000 and the judgment debt be deposited in court because he feared that the respondent was closing shop. In response to the foregoing conditional setting aside of the judgment the defence counsel contended that his client is willing to pay kshs.10,000 as throw away cost. He however denied that his client was closing shop.
5. In view of the foregoing position of possible compromise by the parties, I do not see the point of going to the merits of the Motion and especially after the defence counsel conceded in his submissions that the respondent was indeed served with summons to enter appearance and defaulted to file defence within the prescribed time. The purposes of the court is to do justice and I will do so by making the following orders:-
(a) The judgments of the court dated 11. 11. 2016 be and is hereby set aside.
(b) The respondent to pay the claimant kshs.20,000 as throw away costs within 14days from today as a condition for the setting aside the judgment and in default execution to proceed,
(c) The respondent to file his pleadings within 14 days from today.
(d) The orders in this file to apply in respect of the Motion in ELRCC 765 of 2015 and 799 of 2015.
Signed, Dated and Delivered at Mombasa this 20th day of January 2017.
O.N. MAKAU
JUDGE