[2018] KEELRC 2279 (KLR)
The court found that the respondent's averments regarding lack of service were uncontested, and that the right to be heard is a fundamental principle of natural justice. Since the claimant did not oppose the application, and there was credible evidence that the respondent was not served, the ex parte judgment was...
Source-derived case information.
- Citation
- [2018] KEELRC 2279 (KLR)
- Parties
- Claimant: Peter Odhiambo Ogutu; Respondent: Valley View Office Park Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1918 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Ex parte judgment set aside; suit to proceed inter partes.
- Judges
- NJ Abuodha
- Legal Topics
- Ex Parte Judgment, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Odhiambo Ogutu
Claimant
Valley View Office Park Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment should be set aside due to lack of service on the respondent.
- 2 Whether the respondent was denied the right to be heard.
Ratio Decidendi
The court found that the respondent's averments regarding lack of service were uncontested, and that the right to be heard is a fundamental principle of natural justice. Since the claimant did not oppose the application, and there was credible evidence that the respondent was not served, the ex parte judgment was set aside to allow the respondent an opportunity to be heard. The court emphasized that the claimant could still enjoy the fruits of judgment if successful after an inter partes hearing.
Court Disposition
Ex parte judgment set aside; suit to proceed inter partes.
Orders
- The ex parte judgment delivered on 17th June, 2016 is set aside.
- The respondent shall file and serve a memorandum of response within 21 days from the date of this order.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1918 OF 2014
PETER ODHIAMBO OGUTU.................................................CLAIMANT
VERSUS
VALLEY VIEW OFFICE PARK LIMITED.....................RESPONDENT
RULING
1. By a Notice of Motion dated 29th November, 2017 the respondent seeks that the ex parte judgement delivered on 17th June, 2016 be set aside. The applicant further sought stay of execution of the said judgement.
2. The application was supported by the affidavit of Simon Karuri who deponed among others that the respondent was never served. He denied that the respondent had any guard by the name Samuel or an employee called Vincent. He further stated that if service was effected, he would have been the one to receive the summons. The claimant did not file any response to the application thereby leaving the applicants averments uncontested.
3. The right to be heard is a fundamental principle of natural justice which ought not to be deprived of unless for good cause. The claimant can still enjoy the fruits of his judgement if successful after inter partes hearing.
4. The court therefore sets asides the ex-parte judgement and hereby directs that the respondent files and serves a memorandum of response within 21 days from the date of this order in default the ex-parte judgement shall stand reinstated and execution to proceed.
5. Upon filing the response, parties shall set the suit down for hearing afresh at the Registry.
6. It is so ordered.
Dated at Nairobi on this 16th day of February 2018
ABUODHA JORUM NELSON
JUDGE
Delivered on this 16th day of February 2018
In the presence of:-
……………………for the Claimant and
…………………….for the Respondent.
ABUODHA JORUM NELSON
JUDGE