[2017] KEELRC 627 (KLR)
The court found that while the respondent's reasons for failing to file a defence on time were not very convincing, the draft defence attached to the application raised a reasonable defence. The court emphasized that the discretion to set aside or stay execution of a judgment is not automatic and must be exercised...
Source-derived case information.
- Citation
- [2017] KEELRC 627 (KLR)
- Parties
- Claimant: Isaac Muli Muasya; Respondent: Lavington Security Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 295 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Setting Aside Ex Parte Judgment
- Outcome
- Application for stay of execution and setting aside ex-parte judgment allowed on condition.
- Judges
- DI Wasike, MN Nduma
- Legal Topics
- Stay of Execution, Setting Aside Judgment, Ex Parte Judgment, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Muli Muasya
Claimant
Lavington Security Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Setting Aside Ex Parte Judgment
Legal Issues
- 1 Whether the respondent has demonstrated sufficient grounds for stay of execution of the ex-parte judgment.
- 2 Whether the respondent has a valid defence warranting the setting aside of the ex-parte judgment.
- 3 Whether the reasons for failure to file a defence on time justify the exercise of the court's discretion.
Ratio Decidendi
The court found that while the respondent's reasons for failing to file a defence on time were not very convincing, the draft defence attached to the application raised a reasonable defence. The court emphasized that the discretion to set aside or stay execution of a judgment is not automatic and must be exercised judiciously, particularly where a party demonstrates a valid defence. Consequently, the court allowed the application for stay of execution and setting aside the ex-parte judgment, but imposed a condition that the decretal sum be deposited in court within 30 days, failing which execution would proceed.
Court Disposition
Application for stay of execution and setting aside ex-parte judgment allowed on condition.
Orders
- The respondent shall deposit the decretal sum in court within 30 days of this ruling.
- In default of deposit, execution to proceed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 295 OF 2014
ISAAC MULI MUASYA...............................................CLAIMANT
VERSUS
LAVINGTON SECURITY LIMITED......................RESPONDENT
RULING
1. By a Motion dated 3rd July, 2015 the respondent sought stay of execution of the judgement of this court entered on 6th March, 2016.
2. The application was based on the grounds that the ex-parte judgement had been entered irregularly despite the respondent having been served but inadvertently or mistakenly misplacing the summons and copy of the claim hence was unable to instruct counsel. The applicant further stated that it had a good and meritorious defence to the claim. The applicant also contended that the entry of judgement was irregular, improper and unsustainable in law.
3. Stay of execution or setting aside judgement is a matter upon the discretion of the court. It is a discretion which the court will not exercise as a matter of course. Whereas a party has a right to be heard, that right must be exercised with diligence especially when it comes to litigation. A party is not permitted to ignore or become careless with the court process only to apply for setting a side or stay after judgement has been entered. Setting aside a judgement entails double work for the court and should only be done in merited cases and upon terms. The mere fact that a party was not heard is not enough. The party must demonstrate that he or she has a valid defence to the claim before the discretion can be exercised in his favour.
4. The court has reviewed and considered the draft defence attached to the instant application and is of the view that it raises a reasonable defence. The reasons given for not filing a defence on time are however not very convincing. The court will however allow the application but on terms that the decretal sum be deposited in court within 30 days of this ruling in default execution to proceed.
5. It is so ordered.
Dated at Nairobi this 22nd day of September, 2017
ABUODHA J. N.
JUDGE
Delivered this 22nd day of September, 2017
NDERI NDUMA
JUDGE
In the presence of:
……………………………………….for Claimant
……………………………………….for Respondent