[2022] KEELRC 740 (KLR)
The court held that the Employment and Labour Relations Court (Procedure) Rules, 2016 do not permit entry of judgment in default of appearance or defence. Instead, the correct procedure is for the claimant to move the court for a pre-trial conference and seek a date for formal proof under Rule 15(3). In this case,...
Source-derived case information.
- Citation
- [2022] KEELRC 740 (KLR)
- Parties
- Claimant: Robert Maiko Kyaa; Respondent: Inspector General, National Police Service; Respondent: Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Case E414 of 2020
- Procedural Posture
- Employment Cause / Ruling on Interlocutory Application for Judgment in Default of Appearance
- Outcome
- application dismissed with costs
- Judges
- MN Nduma
- Legal Topics
- Default Judgment, Pre Trial Procedure, Formal Proof, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Maiko Kyaa
Claimant
Inspector General, National Police Service
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Employment Cause / Ruling on Interlocutory Application for Judgment in Default of Appearance
Legal Issues
- 1 Whether the claimant is entitled to judgment in default of appearance against the respondents.
- 2 Whether the Employment and Labour Relations Court (Procedure) Rules, 2016 permit entry of judgment in default of appearance or defence.
- 3 Whether the respondent's pleadings filed out of time without leave should be struck out.
Ratio Decidendi
The court held that the Employment and Labour Relations Court (Procedure) Rules, 2016 do not permit entry of judgment in default of appearance or defence. Instead, the correct procedure is for the claimant to move the court for a pre-trial conference and seek a date for formal proof under Rule 15(3). In this case, the respondents had filed a memorandum of response, list of documents, and witness statement, indicating that the suit was defended. Even if the response was filed out of time and without leave, the claimant should have applied to strike out those pleadings and proceed to formal proof, not seek default judgment. The application for default judgment was therefore defective,...
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion application dated 1st March, 2021 is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC CAUSE NO. E414 OF 2020
ROBERT MAIKO KYAA................................................................................................CLAIMANT
VERSUS
INSPECTOR GENERAL,
NATIONALPOLICE SERVICE AND ANOTHER........................................1ST RESPONDENT
HON. ATTORNEY GENERAL........................................................................2ND RESPONDENT
RULING
1. The Notice of Motion Application dated 1st March, 2021 seeks an order that:-
1. Leave be granted for entry of judgment herein in favour of the claimant in default of appearance.
2. That upon leave being granted, judgment be entered for the claimant as prayed in the Memorandum of Claim.
2. The application is opposed vide grounds of opposition filed by Amelia Chesiyna, Senior State Counsel, Attorney General Chambers in which is clearly indicated that the respondent entered appearance in the suit and filed a memorandum of response to the suit. The respondent also filed list of documents dated 11/5/2021 and a witness statement dated 11/01/2021 was filed by the respondent.
3. The Employment and Labour Relations Court (Procedure) Rules, 2016 do not provide for the Court to enter judgment upon default of the respondent to enter appearance and file a defence to the suit.
4. The tested practice of the Court is for a claimant in respect of which a defence has not been filed to move the Court for a pre-trial conference pursuant to which a date for formal proof is granted in terms of Rule 15(3). The applicant did not follow this procedure under Rule 15(3) of the Employment and Labour Relations Court (Procedure) Rules.
5. In the present case, the respondent having filed a statement of response (allegedly) out of time and without leave of Court, the claimant ought to have moved the Court to strike out the pleadings filed out of time by the respondent and the matter to proceed to formal proof.
6. The present application is defective, misconceived and an abuse of Court process since the suit as it stands is clearly defended by the respondent and ought to proceed to a full trial upon conclusion of pre-trial procedures.
7. The application is accordingly, dismissed with costs in the cause.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 17TH DAY OF FEBRUARY, 2022.
MATHEWS N. NDUMA
JUDGE
Appearance
Mr. Were for claimant/Applicant
M/s Chesiyna for Respondent
Ekale – Court Assistant