[2019] KEELRC 2252 (KLR)
The court found that the Respondents were properly served with the suit papers and the decree, as evidenced by the consistent pattern of service and the Respondents' refusal to acknowledge receipt. The draft defence presented by the Respondents did not disclose any triable issue or prima facie defence that would...
Source-derived case information.
- Citation
- [2019] KEELRC 2252 (KLR)
- Parties
- Claimant: Merry Mukiria; Respondent: Methodist Church in Kenya Trustees Registered & Another
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 140 of 2018
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Judgment
- Outcome
- application dismissed with costs to the claimant; execution may proceed
- Judges
- AN Makau
- Legal Topics
- Setting Aside Judgment, Service of Process, Default Judgment, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Merry Mukiria
Claimant
Methodist Church in Kenya Trustees Registered & Another
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the Respondents were properly served with suit papers and the decree.
- 2 Whether the Respondents have disclosed a triable issue or prima facie defence to warrant setting aside the judgment.
- 3 Whether the application to set aside the judgment was filed without inordinate delay.
Ratio Decidendi
The court found that the Respondents were properly served with the suit papers and the decree, as evidenced by the consistent pattern of service and the Respondents' refusal to acknowledge receipt. The draft defence presented by the Respondents did not disclose any triable issue or prima facie defence that would justify setting aside the judgment. The court exercised its discretion against the Respondents, holding that they were undeserving of the relief sought due to their conduct and lack of a substantive defence. Consequently, the application to set aside the judgment was dismissed with costs to the Claimant, and execution was allowed to proceed.
Court Disposition
application dismissed with costs to the claimant; execution may proceed
Orders
- The application to set aside the judgment is dismissed with costs to the Claimant.
- Execution of the judgment may proceed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CAUSE NO. 140 OF 2018
MERRY MUKIRIA.....................................................CLAIMANT
VERSUS
METHODIST CHURCH IN KENYA
TRUSTEES REGISTERED & ANOTHER.......RESPONDENTS
RULING
1. What falls for determination is the Respondents’ notice of motion application dated 15th November 2018. In the motion, the Respondents seek to set aside the decision of this court made on 9th October 2018. The Respondents assert that they were not served with the suit papers and only got to learn of the matter at execution stage. It was argued that the Respondents had a viable/prima facie defence to the suit and thus sought leave to defend. The Respondent argued the motion had been filed without inordinate delay. The Claimant was of course not of the same view and filed her replying affidavit in opposition to the motion. The Claimant asserts that the Respondents were properly served and had been unwilling to cooperate when served and the application was therefore an attempt to delay justice. She averred that the same person who has always been served was served with the decree they now sought to set aside and he declined to sign in acknowledgment as usual. She opined that should the court be inclined to grant the prayers sought then the entire decretal sum should be deposited in an interest earning account in the joint names of the advocates.
2. The suit proceeded undefended and the Respondents upon being notified of the judgment sought to set aside the judgment through the motion before me. In the case of Patel vE. A. Cargo Handling Services Ltd [1974] E.A. 75Duffus P. held as follows:-
The main concern of the court is to do justice to the parties and the court will not impose conditions in itself to fetter the wide discretion given to it by the rules. I agree that where there is a regular judgment the as is the case here, the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on merits does not mean in my view, a defence that must succeed, it means as Sheridan J. put it ‘a triable issue’ that is an issue which raises aprima facie defence and should go to trial for adjudication. (underline mine)
3. In this motion, even after considering the arguments advanced by the Respondents, there is a draft defence which upon analysis does not disclose any triable issue for my consideration. Further, from the account before me, the Respondents were served in the same fashion as before with the decree they seek to set aside. The Chairman who has been served repeatedly and declined to acknowledge receipt is the bane of the Respondents as they would suffer the consequences of execution as I decline to set aside. The Respondents are undeserving of the exercise of my discretion to set aside. Application is dismissed with costs to the Claimant. Execution may proceed.
It is so ordered.
Dated and delivered at Nyeri this 19th day of February 2019
Nzioki wa Makau
JUDGE
I certify that this is a
true copy of the Original
Deputy Registrar