[2016] KEELRC 692 (KLR)
The court found that the respondent had raised arguable grounds regarding lack of proper service and the right to be heard. Applying the established principles on setting aside ex parte judgments, the court exercised its discretion to set aside the judgment on terms. The respondent was required to deposit the...
Source-derived case information.
- Citation
- [2016] KEELRC 692 (KLR)
- Parties
- Claimant: Thomas Abuga Ethambo; Respondent: Sophia Khalid Rattos
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 477 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Application to set aside ex parte judgment granted on conditions.
- Judges
- MSA Makhandia
- Legal Topics
- Setting Aside 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
Thomas Abuga Ethambo
Claimant
Sophia Khalid Rattos
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 proper service on the respondent.
- 2 Whether the respondent should be granted leave to defend the suit and the matter heard de novo.
- 3 What conditions, if any, should be imposed for setting aside the judgment.
Ratio Decidendi
The court found that the respondent had raised arguable grounds regarding lack of proper service and the right to be heard. Applying the established principles on setting aside ex parte judgments, the court exercised its discretion to set aside the judgment on terms. The respondent was required to deposit the decretal sum and security for costs into court and file a response and supporting documents by a specified date. Failure to comply with these conditions would result in the lapse of the orders and allow the claimant to proceed with execution. The court emphasized the need to balance the interests of justice, ensuring that the respondent is not unjustly denied a hearing while also...
Court Disposition
Application to set aside ex parte judgment granted on conditions.
Orders
- Order 3 of the motion granted: judgment set aside on condition that the decretal sum of Kshs 197,966.60 and security for costs of Kshs 45,000 be deposited into court on or before 30 September 2016.
- Respondent to file and serve a response, witness statement, and documents (including employment records if available) by 30 September 2016.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 477 OF 2014
THOMAS ABUGA ETHAMBO……………………….CLAIMANT
v
SOPHIA KHALID RATTOS………………...…….RESPONDENT
RULING
1. The Court delivered judgment in favour of the Claimant on 19 February 2016 in which the termination of the Claimant’s employment was found unfair and he was awarded Kshs 197,966/60 comprising of compensation, pay in lieu of notice and pay in lieu of accrued leave.
2. The Cause had proceeded as an undefended Cause.
3. On 20 June 2016, the Respondent moved Court seeking
1. ….
2. THAT pending the inter partes hearing and determination of this Application, this Honourable court be pleased to stay the execution process pursuant to judgment obtained herein together with all other orders. 3. THAT the judgment entered against the Respondent herein be set aside together with all consequential orders thereto pending the hearing and determination of this application.
4. THAT upon granting of prayer 3 above, the defendant be granted leave to file a defence and defend this suit.
5. THAT the Honourable court be pleased to order that the matter be re-opened and heard de-novo inter parties. 6. …..
4. The Claimant filed grounds of opposition to the application and the Court took oral submissions on 19 July 2016.
5. The Court has considered the application, grounds of opposition and oral submissions.
6. In the Court’s view, the utility of the orders sought will fall or be merited upon a positive outcome on the prayer for setting aside the judgment.
7. The grounds advanced by the Respondent for seeking the orders are that the judgment was delivered without her knowledge and she only learnt of the judgment after service of taxation notice; she was not personally served; that a person who was allegedly served Salim Didi was not her Farm Manager; she was not given a chance to participate in the proceedings/hearing notice was not served; she stands to suffer substantial loss; she has a good defence to the Cause and that the Court has been moved without undue delay.
8. The legal principles applicable to an application for setting aside an ex parte judgment are now legion (see for instance Kanji Naran v Velji Ramji (1954) 21 EACA 20); Pithon Waweru Maina v Thuka Mugiria (1983) eKLRand Patel v EA Cargo Handling Services Ltd [1974] EA 75).
9. The principles are that there are no limits to the judge’s discretion to set aside an ex parte judgment except that the order should be granted on terms; the Court has no discretion where there has been no proper service; the main concern is to do justice to the parties in order to avoid injustice caused by inadvertence, accident or excusable mistake but not to assist an applicant who has obstructed the course of justice; nature of defence if brought to the court’s attention; fact that denial of a hearing ought to be a final resort and whether costs can compensate the Claimant.
10. The Court went to great lengths to set out the history of service of process in the judgment under challenge.
11. The Court has also evaluated the facts as brought forth by the Respondent in the present application and is of the view that order 3 as set out in the motion under consideration should be granted on terms.
12. The Court in effect grants order 3 of the motion on conditions
(a) that the decretal sum of Kshs 197,966/60 and security for costs in the sum of Kshs 45,000/- be deposited into Court on or before 30 September 2016.
(b) that the Respondent to file and serve a Response, witness statement and documents (including employment records if available) to be relied on before 30 September 2016.
13. On failure to comply with any of the conditions, the orders granted herein will automatically lapse and the Claimant will be at liberty to proceed with execution.
14. Claimant to have thrown away costs.
Delivered, dated and signed in Nakuru on this 23rd day of September 2016.
Radido Stephen
Judge
Appearances
For Claimant Mr. Bichanga instructed by Chepkwony & Co. Advocates
For Respondent Mr. Opar instructed by Muthanwa & Co. Advocates
Court Assistant Nixon