[2019] KEELRC 2172 (KLR)
The court exercised its discretion to set aside the default judgment on the basis that the Respondent's draft defence raised triable issues, including the employment status of the deceased. The court found that justice would be served by allowing the Respondent to defend the suit, provided the defence and witness...
Source-derived case information.
- Citation
- [2019] KEELRC 2172 (KLR)
- Parties
- Applicant: Purity Wanjiku Migwi (suing as the legal Representative of the estate of Julius Kariuki Ndichu); Respondent: Valentine Atenya Mutoko
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 445 of 2017
- Procedural Posture
- Employment Cause / Application for Leave to Defend; Setting Aside Default Judgment
- Outcome
- Application allowed; default judgment set aside on terms.
- Judges
- AN Makau
- Legal Topics
- Leave to Defend, Default Judgment, Setting Aside Judgment, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Purity Wanjiku Migwi (suing as the legal Representative of the estate of Julius Kariuki Ndichu)
Applicant
Valentine Atenya Mutoko
Respondent
Procedural Posture
Employment Cause / Application for Leave to Defend; Setting Aside Default Judgment
Legal Issues
- 1 Whether the Respondent should be granted leave to defend the suit after failing to file a defence in time.
- 2 Whether the default judgment should be set aside on terms that are just.
- 3 Whether the draft defence raises triable issues warranting the matter to proceed on merits.
Ratio Decidendi
The court exercised its discretion to set aside the default judgment on the basis that the Respondent's draft defence raised triable issues, including the employment status of the deceased. The court found that justice would be served by allowing the Respondent to defend the suit, provided the defence and witness statements are filed within 7 days and thrown away costs are paid to the Claimant. Failure to comply would result in the matter proceeding as an undefended cause.
Court Disposition
Application allowed; default judgment set aside on terms.
Orders
- Respondent to file defence and witness statements within 7 days.
- Respondent to pay thrown away costs of Kshs. 10,000 to the Claimant within 7 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CAUSE NO. 445 OF 2017
PURITY WANJIKU MIGWI (suing as the legal Representative of the estate of
JULIUS KARIUKI NDICHU..................................................................CLAIMANT
VERSUS
VALENTINE ATENYA MUTOKO....................................................RESPONDENT
RULING
1. The application before me is the one dated 8th October 2018 in which the Respondent seeks leave to defend the suit. The Respondent had failed to file a defence in time upon being served by the Claimant and the suit was slated to proceed as an undefended cause. The Claimant is naturally opposed to the grant of the orders sought in the application. The Respondent argues that there is a triable defence and is determined to defend the suit.
2. The factors to consider in an application for leave to defend are well set in precedent. In setting aside the default judgment entered against the Respondent, I am required to do so on terms that are just. As held in the case of Patel vEast Africa Cargo Services [1974] EA 75
The main concern of the court is to do justice to the parties and the court will not fetter the wide discretion given to it by the rules…where it is a regular judgment as is the case here the court will not usually set aside the judgment unless it is satisfied there is a defence on the merits.
3. In setting aside the order that the suit is to proceed undefended, the court has considered that the matter was yet to proceed for formal proof and the fact that there is a defence on the merits. The draft memorandum of reply raises triable issues such as whether the deceased was an employee of the Respondent or not. In the premises I will set aside the default judgment entered herein on terms. The Respondent must file the defence and witness statements within 7 days and pay the thrown away costs to the Claimant which I assess at Kshs. 10,000/- within the next 7 days in default of which the matter will proceed as an undefended cause.
It is so ordered.
Dated and delivered at Nyeri this 26th day of February 2019
Nzioki wa Makau
JUDGE