[2014] KEELRC 779 (KLR)
The court found that the respondents were granted ample opportunity to file their defence but failed to do so without reasonable explanation. Their application to set aside the judgment was only made after execution proceedings commenced, indicating a lack of genuine interest in defending the suit and a deliberate...
Source-derived case information.
- Citation
- [2014] KEELRC 779 (KLR)
- Parties
- Respondent: Jaideep Shah (on behalf of respondents); Applicant: Claimant (name not provided)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 19'A' of 2013
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Judgment
- Outcome
- application dismissed with costs
- Legal Topics
- Setting Aside Judgment, Right to Be Heard, Default Judgment, Delay in Filing Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jaideep Shah (on behalf of respondents)
Respondent
Claimant (name not provided)
Applicant
Procedural Posture
Miscellaneous Application / Application to Set Aside Judgment
Legal Issues
- 1 Whether the respondents should be granted leave to file a defence out of time.
- 2 Whether the judgment delivered on 22.2.13 should be set aside for failure to file a defence.
- 3 Whether the respondents' delay was excusable or amounted to an abuse of court process.
Ratio Decidendi
The court found that the respondents were granted ample opportunity to file their defence but failed to do so without reasonable explanation. Their application to set aside the judgment was only made after execution proceedings commenced, indicating a lack of genuine interest in defending the suit and a deliberate attempt to delay justice. The court held that the discretion to set aside judgment should not be exercised in favour of parties who have shown indifference to court processes and only act when faced with execution. The draft defence annexed was found to be a mere denial and raised no triable issues. Consequently, the application lacked merit and was dismissed with costs to the...
Court Disposition
application dismissed with costs
Orders
- The application dated 27.6.13 is dismissed with costs to the claimant.
Full Case Text
Judgment text and source record
13 paragraphs
IN THE INDUSTIRAL COURT OF KENYA AT KISUMU
(previously Nai No. 1099/2011)
VERSUS
The respondent applicants herein filed an Application dated 27. 6.13. They seek leave of Court to file a defence and to have the Judgment delivered on 22. 2.13 set aside. It is the respondents case that their counsel did not file a defence on their behalf nor were they informed of the hearing of this case. The respondents further contend that they have a good defence which they would like to be considered and urge court not to condemn them unheard. In their Affidavit, sworn by Jaideep Shah on 23. 6.2013, the respondents aver that they were served with Summons to Enter Appearance and instructed Gumbo & Associates to act for them. They never received any correspondence on the matter from Court as per their counsel until they received a copy of the Judgment herein.
The claimant respondents, opposed this Application.The claimant filed her Replying Affidavit sworn on 23. 9.2013. It is her contention that the Application lacks merit and is intended to delay this case further. The claimant aware that what is being sought by the respondent was well addressed in Paragraph No.4 of the Court Judgment that the respondent was granted time and ordered to file their response on or before 6. 12. 13. They failed to do so and therefore squandered their time and resources. Further the claimant aware that the current application was filed on 27. 6.2013 almost four (4) months after the respondents were served with the Judgment and they did nothing and therefore the claimants contention is that the respondents application is meant to delay this case further and punish her.
The conduct of the respondents and their lack of interest in the case is explicity exhibited by their chronic absence from Court on various occasions and their failure to file a defence. The respondents now contend that it is their counsel to blame and not themselves and they should not be condemned for the mistakes of their counsel. The respondent however does not answer to the fact that they were served with the Judgment in this case and only filed this application four (4) months later after the execution process commenced an indication that they were not keen on this case until the execution was about to proceed.
In the case of Patel V.E.A. Cargo Handling Services (1974) EA 75, the Court had this to say:-
This issue of discretion was also discussed inShah Vs Mbogo (1967) EA 116where the Court stated as follows:-
Whereas this Court has a wide discretion to allow this application the Court cannot aid those who are bent to deliberately delay or obstruct justice as seen in this case where the applicants deliberately ignored court discretion to file defence and even pay costs. The Applicants only woke up to move this court when execution processes were commenced and this was a deliberate move to delay this case further. The draft defence annexed to this application has also been considered and is a mere denial and it raises no triable issues. I do not find this application merited and I therefore dismiss it with costs accordingly.
HELLEN WASILWA
30. 1.2014
Appearance
Kitiwa for respondent/applicant – absent