https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1582

Ogudaa v Qingdao Comscore Technologies Co Ltd (Cause E1108 of 2025) [2026] KEELRC 1582 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1582 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E1108 of 2025 ON Makau, J June 11, 2026 Between Laxon Chris Ogudaa Claimant and Qingdao Comscore Technologies Co Ltd Respondent Ruling Introduction 1.This Ruling relates to the Respondent’s Notice of Motion dated 2nd June 2026, brought under Rule 13(1) & (5), and 14(6) of the ELRC Procedure Rules, 2016, Article 48, 50(1) and 159(2)(d) of the Constitution, and section 1, 1A,3A and 95 of the Civil Procedure Act. The Applicant seeks the following orders: -a.That this application be certified as urgent and be heard ex parte in the first instance.b.That pending the inter partes hearing and determination of this application, there be a stay of the formal proof hearing scheduled for 3rd June 2026.c.That the Honourable Court be pleased to grant the Respondent/Applicant leave to file its Response to the Memorandum of Claim dated 12th November 2025 out of time.d.That the draft Response to Memorandum of Claim annexed hereto be deemed as duly filed upon payment of the requisite filing fees.e.That the costs of this application be in the cause. 2.The Motion is supported by an Affidavit dated 2nd June 2026 sworn by one Zhang Di, the Project Coordinator of the Respondent company and it is opposed by a Replying Affidavit sworn on 3rd June 2026 by the Claimant. The motion was orally argued on 3rd June 2026 by the counsel for the two sides. Facts 3.The Claimant filed a Memorandum of Claim dated 12th November 2025 against the Respondent arising from alleged unlawful termination of employment on 16th June 2025. The Respondent was served with court process in November 2025 but failed to enter appearance. 4.Before filing the suit, the Claimant served a demand notice a letter dated 2nd September 2025 upon the Respondent and it responded through its advocates on 11th September 2025. 5.By 16th February 2026, the respondent had not entered appearance and the court fixed the suit for formal proof on 3rd June 2026. On 2nd June 2026, a day before the hearing date, the Respondent filed the instant application seeking leave to file its defence out of time and a stay of the formal proof hearing. 6.It was urged for the Respondent that the delay to file defence was not deliberate but due to logistical challenge regarding communication between the local company and its parent company in China. It further urged that the respondent has a defence that raises triable issues including jurisdictional challenge, and the fact that the termination occurred during probation period due to claimant’s performance challenges. 7.For emphasis, the applicant placed reliance on Nyandega v. Savannah Cement Limited (Cause E014 of 2020) [2022] KEELRC 13002 (KLR) and Purity Wanjiku Migwi (suing as the legal Representative of the estate of Julius Kariuki Ndichu) v. Valentine Atenya Mutoko [2019] KEELRC 2172 (KLR). 8.The Claimant opposes the application on the grounds that the Respondent was served with the Memorandum of Claim in November 2025 but only moved the Court in June 2026. He contended that his advocate has been in constant communication with the Respondent's advocate, about the case, since January 2026, and that is why he attended court. 9.He contended that the alleged logistical challenges is baseless as there is no evidence to prove the alleged communication between the local office and the china office. He further contended that the demand letter was swiftly responded to on 11th September 2025 because the information was in the local office and not China. 10.The Claimant also asserts that he was laid off in June 2025 and therefore any further delay of the trial will he prejudice him since has no other source of income. 11.Having considered the instant Motion, the Replying Affidavit, submissions and the cited authorities the main issue for determination is whether the Respondent should be granted leave to file its Statement of Defence out of time. Analysis 12.The law governing extension of time to file pleadings in this Court is found in Rule 13(5) of the Employment and Labour Relations Court (Procedure) Rules, 2016 which provides that the Court may, upon such terms as it thinks just, extend the time within which any pleading is to be filed. This discretion is wide and intended to facilitate substantive justice rather than penalize litigants for procedural shortcomings. 13.The Respondent has cited the case of Nyandega v. Savannah Cement Limited (supra) where the Court allowed an application for leave to file defence out of time, holding that the right to a fair hearing ought not to be sacrificed at the altar of procedural technicalities. Similarly, in Purity Wanjiku Migwi v Valentine Atenya Mutoko (supra), the Court emphasized that Article 50(1) of the Constitution guarantees every person the right to have their dispute heard and determined, and that courts should be reluctant to lock out parties without according them a hearing on the merits. 14.I have considered these authorities and find them persuasive. The right to a fair hearing is not a mere procedural formality but a constitutional imperative. Article 159(2)(d) of the Constitution commands this Court to administer justice without undue regard to procedural technicalities. 15.In James Kanyiita Nderitu & another v. Mario Philotas Ghikas & another [2017] eKLR, the Court of Appeal held that: -“…the Court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure to file his memorandum of appearance or defence on time as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment among others.” [ emphasis added] 16.In Patel v. East Africa Cargo Handling Services Ltd (1974) EA 75 Duffus P. held that:-“The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement 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 a prima facie defence and which should go to trial for adjudication.” 17.In Shah v. Mbogo and Another [1967] EA 116 the Court of Appeal of East Africa held that:-“This discretion (to set aside decisions) is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” (emphasis added) 18.From the foregoing binding precedents, it is clear that setting aside of judgment or court orders is not a matter of cause, but one that must be grounded on demonstration by the applicant, that the impugned decision was not occasioned by willful negligence on his part. It therefore behooves the Applicant to establish by affidavit evidence a sufficient cause to warrant granting of the order. 19.What constitutes a sufficient cause depends on the facts of each case. In Wachira Karani v Bildad Wachira [2016] eKLR Mativo J held that:-“Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause...” 20.In this case the reason given for the respondent’s failure to file defence is that the Respondent is a foreign company incorporated in China with a branch in Kenya. It is not disputed that obtaining approvals from a parent company in a different jurisdiction, across different time zones and legal systems can present genuine logistical challenges. The Claimant did not rebut the foregoing assertion by evidence, like CR12 for the local company. 21.Assuming that the Respondent is indeed a Multinational entity, the court takes judicial notice that such entities operate under internal governance structures that require adherence to certain protocols. Therefore, any delays occasioned by such processes are not necessarily indicative of willful neglect. 22.I have also considered the draft Defence filed with the motion, and found that it indeed raises what appears to be (triable issues). Clause 30 of the employment contract allegedly provides for dispute resolution in China, a jurisdictional challenge that this Court must have an opportunity to consider. The Respondent also raises substantive defences regarding the probationary nature of the Claimant's contract, the 7-day notice under Section 42(4) of the Employment Act and the Claimant's own admission of work-related shortcomings via email dated 12th June 2025. 23.A defence that raises even one triable issue should not be shut out summarily. The Claimant will have his day in court, but that day must be after the Respondent has been afforded an opportunity to present its case. Justice is not a one-way street. 24.On the issue of prejudice, the Claimant asserts that he will suffer because he has no other source of income. While I sympathize with the Claimant's situation, any prejudice that may arise from the delay can be compensated by an award of costs. Conversely, the Respondent stands to suffer substantial injustice if it is condemned unheard on a matter where it has a plausible defence. 25.Regarding the Claimant's assertion that the Respondent's advocate was in communication with his advocate since January 2026, that fact even if true, does not automatically disentitle the Respondent from seeking leave. The Respondent is ultimately entitled to be heard on the merits of its case. The delay of approximately seven months, while regrettable, is not so inordinate as to be incurable, particularly given the explanation proffered and the constitutional right to a fair hearing. 26.The formal proof hearing was scheduled for today 3rd June 2026. It would be unjust to proceed with a formal proof hearing when the Respondent has indicated a desire to defend the suit and has raised triable issues. The purpose of formal proof is to enable a Claimant to prove his case where no defence has been filed. Where a Respondent comes to court before that hearing and demonstrates good cause for filing a defence out of time, the proper course is to grant leave and set aside the formal proof date. Conclusion 27.Having considered the application, the replying affidavit, submissions and the authorities cited, I find that the Respondent has demonstrated sufficient cause to warrant grant of leave to file Statement of Defence out of time. The right to a fair hearing under Article 50(1) of the Constitution outweighs the procedural delay, particularly where the delay has been explained and a defence raising triable issues has been presented. 28.Consequently, I make the following orders:-a.The Notice of Motion dated 2nd June 2026 is hereby allowed.b.The formal proof hearing is hereby stayed.c.The Respondent is granted leave to file its Response to the Memorandum of Claim (Statement of Defence) within 7 days from the date hereof.d.The Claimant is at liberty to file any response to the Defence within 7 days of service.e.The matter shall be mentioned on 16th July 2026 for pre-trial directions.f.Considering the inconveniences caused to the Claimant by scuttling of the scheduled hearing, the Respondent is condemned to pay thrown-away costs of Kshs. 20,000 payable within 14 days of this Ruling and in default the Claimant will be at liberty to execute. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 11TH DAY OF JUNE, 2026.ONESMUS MAKAUJUDGEAppearance:Owala for ClaimantWanda for Applicant