[2018] KEELRC 1269 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 498 OF 2013

(Before Hon. Lady Justice Maureen Onyango)

TIMOTHY MUSINZI ARULA...............................................................CLAIMANT

-Versus-

FRANCIS GACHANJA T/A SHOWCASE PROPERTIES..........RESPONDENT

RULING

The clam herein was heard in the absence of the respondent/applicant and judgment entered against him on 18th August 2017.

By application dated 13th December 2017 filed under certificate of urgency, the respondent seeks the following orders -

1. That leave be granted by the Court for the Respondent’s Advocates to come on record.

2. That service of this application be dispensed with in the first instance and this application be certified as urgent.

3. That there be stay of execution of the judgement dated 18tn August 2017 pending the hearing and determination of this application.

4. That the Court be pleased to set aside the judgement entered against the Respondent and to allow the Respondent to prosecute its defence.

5. That the Court be pleased to cancel, set aside, recall and lift the warrants of attachment and sale herein.

6. That the costs of the Application be costs in the cause.

His grounds in support of the application as set out in the grounds and affidavit filed with the application are that the respondent was never served with pleadings, that the issue was brought to his attention by the proclamation and that if the application is not allowed he would stand condemned unheard.

The applicant states that the only time he attended court for hearing was on 18th January 2016 but the case did not proceed, as the claimant did not attend court.

The claimant opposes the application and has filed a replying affidavit in which he deposes that even before he filed suit, the respondent ignored his two demand letters dated 23rd January and 12th February 2012, copies of which he has annexed to his affidavit as annexures “T.M.A.1” and “T.M.A.2”. He further deposes that after filing suit he accompanied the process server to the respondent’s office where the respondent abused and threatened him. He has filed a copy of the affidavit of service of the process server Mr. Charles Mutua Mwanzi in which the process server confirms that service was effected upon Mr. Gachanja whom he described as a very rude and ignorant gentleman who started abusing the claimant in the presence of the process server. It is stated in the affidavit of service that Mr. Gachanja was personally served.

The claimant further deposes that thereafter the respondent was served through prepaid registered mail and pursuant to the said service by registered mail, the respondent attended court on 18th January 2016 for mention. He deposes that on 10th March 2017, the court on its own motion issued notice to all parties to attend court for hearing on 3rd April 2018 and the respondent was served through his usual postal address, but did into show up on the hearing date. That the respondent was served with notice of judgment by letter dated 24th August 2017 and taxation notice on 26th September 2017 through registered mail. The claimant deposes that none of the mail sent to the respondent was ever “Returned to Sender” by the post office being proof that the same was received.

The claimant deposes that the affidavit in support of the application is replete with falsehoods and that he will suffer injustice should the judgment be set aside as he has been in the court corridors for five (5) years, that the judgment was regular and that the court confirmed in the judgment that the respondent was properly served and failed to file a defence.

He prays that the application be dismissed.

The application was disposed by way of written submissions.

Determination

I have considered the application together with the grounds and affidavit in support thereof. I have further considered the replying affidavit, the submissions by parties and the authorities cited.

Order 10 Rule 11 on the Civil Procedure Rules provides for setting aside judgment in default of defence while Order 12 Rule 7 provides for setting aside of judgment entered in default of attendance by the respondent. In the present case there was both default of judgment and none attendance on the date of hearing by the respondent.

The issues for determination are whether the respondent was properly served with both memorandum of claim and hearing notice.

The claimant has in the replying affidavit annexed a copy of return of service indicating that the respondent was served in person. The respondent has in his affidavit admitted receiving notice and attending court on 18th January 2016.

The respondent filed a further affidavit in which he acknowledges that he was aware of the suit. He has further confirmed having received notice by post to attend court for fixing of hearing date on 8th January 2016 and a hearing notice for 18th January 2016.

From the foregoing I find that the respondent was properly served with summons and claim as attested to by the affidavit of service, and that he was subsequently served with notices for fixing hearing dates, which he ignored.

Although the respondent avers that it instructed counsel to appear in court on 18th January 2016, which according to the court record was a mention and not a hearing date, no appearance was entered or notice of appointment filed by Kennedy Bwomote Advocate and no advocate was on record for the respondent until the time of filing the present application. There is also no evidence that the respondent ever informed the claimant about the direction by the court of 18th January 2016 or that the respondent after learning that a suit had been filed against him, even took the initiative to inform the claimant that it had not been served with pleadings.

Order 10 Rule 11 provides that –

[Order 10, rule 11. ] Setting aside judgment.

Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.

Order 12 Rule 7 further provides that –

[Order 12, rule 7. ] Setting aside judgment or dismissal.

Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.

The two provisions give the court discretion to set aside judgment in default of appearance, defence and attendance on a hearing date.

The principles for setting aside ex parte judgments are well settled. The courts have wide discretion but the courts will not aid a person who deliberately seeks whether by evasion or otherwise, to obstruct or delay the cause of justice (Shah -V- Mbogo).

The respondent herein has not filed appearance or defence to the claim although he has admitted knowledge of the existence of the case. From the affidavit of service of summons and memorandum of claim, I have no doubt that the respondent was properly served. I therefore have no doubt in my mind that the respondent ignored the summons and hearing notices the same way he ignored the demand letters of the claimant. He further ignored the taxation notice served on 26th September 2017 by registered mail until the auctioneer called upon him on 5th December 2017 to make good the decree herein or face execution. I find this a classical case of obstruction of court process in order to delay the cause of justice. I find no reason to deny the claimant the realisation of the fruits of his judgment.

I have further considered the draft response to claim filed with the application of the respondent. At paragraphs 4, 5 and 6 he deposes that –

4. On or about December 2011, the Respondent faced construction challenges that rendered it impossible to continue with the project to due to faulty supply of construction materials.

5. These circumstances were beyond the Respondent's Control and as such he instituted a suit against the suppliers through Civil Suit no. 577 of 2011 for damages for supply of defective concrete.

6. Despite these challenges, the Respondent continued to pay the employee till sometime around November 2012 where he had exhausted all his funds and as such could not continue paying the Claimant.

The defence is an admission of termination of employment. There is no evidence that the claimant was given notice or paid in lieu or that he took annual leave, or that the respondent made payments of NSSF or had other gratuity or provident fund. These are the items that were the subject of the judgment. It therefore means that even if the respondent defended the claim, the court would most likely still have awarded the said items. The setting aside of the judgment herein would therefore serve no useful purpose other than consuming the very limited court time and increasing costs, as well as delaying the enjoyment by the claimant of the fruits of his judgment.

For the foregoing reasons, I find the application of the respondent dated 13th December 2017 without merit with the consequence that it is dismissed with costs.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 10TH DAY OF AUGUST 2018

MAUREEN ONYANGO

JUDGE