[2015] KEELRC 1018 (KLR)
The court found that the respondent was properly served with court documents both by registered mail and by a process server as directed by the court. The process server's affidavit confirmed service at the respondent's premises, and the respondent's failure to enter appearance or file a defence was deemed...
Source-derived case information.
- Citation
- [2015] KEELRC 1018 (KLR)
- Parties
- Claimant: Kennedy Omondi Akoko; Respondent: Rafiki Foundation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 753 of 2013
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application dismissed with costs
- Legal Topics
- Service of Process, Ex Parte Judgment, Right to Be Heard, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Omondi Akoko
Claimant
Rafiki Foundation
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the respondent was properly served with court documents and hearing notice.
- 2 Whether the respondent was denied the right to be heard.
- 3 Whether sufficient grounds exist to set aside the ex-parte proceedings and judgment.
Ratio Decidendi
The court found that the respondent was properly served with court documents both by registered mail and by a process server as directed by the court. The process server's affidavit confirmed service at the respondent's premises, and the respondent's failure to enter appearance or file a defence was deemed deliberate. The court concluded that the respondent's conduct was aimed at frustrating the claimant and the ends of justice. No reasonable grounds were advanced to justify setting aside the ex-parte proceedings and judgment. Therefore, the application to set aside was dismissed with costs to the claimant.
Court Disposition
application dismissed with costs
Orders
- The application dated 16th April, 2015 is dismissed with costs to the claimant.
- The ex-parte proceedings, judgment, and bill of costs remain undisturbed.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
CAUSE NO. 753 OF 2013
KENNEDY OMONDI AKOKO…….………………… CLAIMANT
VERSUS
RAFIKI FOUNDATION………..…………………. RESPONDENT
Mr Wakiaga for Respondent/Applicant
Claimant/Respondent in person
RULING
1. Application dated 16th April, 2015, seeks the court to set aside the ex-parte proceedings in the suit as well as the Judgment and the bill of cost.
2. That the Respondent be given unconditional leave to defend the suit.
3. The Application is based on the grounds set out on the face of the Notice of Motion to witi.
4. The Claimant/Respondent served the Respondent/Applicant with copies of the court proceedings too late and she was not given a chance and time to file relevant documents in reply and to defend herself.
5. The Respondent was denied a right to be heard in the circumstances of the case.
6. The Application is opposed by the Claimant/Respondent vide a replying affidavit sworn on 22nd April, 2015.
7. The Claimant/Respondent details particulars of service of summons and other court proceedings.
8. In particular on 8th October, 2014, the court directed that the summons and memorandum of claim be served through a process server. An Affidavit of Service sworn on 4th December, 2014 by a Court Process Server Mr Bashir Mumbaha was filed on 5th December, 2014.
9. The Process Server deposes that on 26th November, 2014 he received a hearing notice dated 20th November, 2014, summons dated 20th November, 2014 and memorandum of claim dated 20th May, 2013 from the Claimant with instructions to serve the same on the Respondent.
10. That he proceeded to the Respondent’s premises at Casino, former resident of the late President Kenyatta next to Kenya quarry along Njiru Mwiki Road.
11. That upon arrival he went to the gate of the Respondent and explained the purpose of the visit to the guard with the aim to be let in to serve the documents but the guard refused him entry stating that he had no appointment with management.
12. That the Process Server served the guard with the stated documents and requested that she signs his principal copies which she declined.
13. It is the Claimant’s submissions that the Applicant did not show any interest in the suit inspite of being aware of it since the year 2013 to-date.
14. That the Applicant is out to frustrate the court process and deny the Claimant justice.
15. That the supporting affidavit of Mr Wakiaga Peter Semekia Advocate for the Applicant lacks merit and this application be dismissed with costs.
Determination
17. The averment by the Applicant that it was served with the court processes too late is not born out of any facts. Initially, court documents were served vide registered mail after the Claimant was denied entry to the premises.
18. The Court intervened and directed that the Applicant be served by a process server and this happened on 26th November, 2014, which fact is common cause.
19. The hearing of the suit was set for this 8th December, 2014.
20. Inspite of service, the applicant did not enter appearance nor file a defence in the suit. The applicant was in deliberate default of entering appearance and attending the hearing of the suit.
21. Indeed, the conduct by the Applicant described by the Claimant which the court finds to be truthful is consistent with conduct aimed at frustrating its ex-employee and defeating the ends of justice.
22. Accordingly, no reasonable grounds have been advanced by the Applicant to warrant this court to set aside the proceedings and judgment delivered on 6th March, 2015.
23. The Application is dismissed with costs.
Dated and Delivered at Nairobi this 29th Day of May 2015
MATHEWS N. NDUMA
PRINCIPAL JUDGE