[2018] KEELRC 547 (KLR)
The court found that the Respondent failed to provide a sufficient basis to set aside the ex parte judgment. The Respondent's defence and statements had already been considered, and there was no merit in allowing a party that was indolent in its conduct to delay the conclusion of litigation. The application to set...
Source-derived case information.
- Citation
- [2018] KEELRC 547 (KLR)
- Parties
- Claimant: Victor Amos Nandi Otipa; Respondent: Malplast Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 185 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Setting Aside Judgment, Ex Parte Judgment, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Amos Nandi Otipa
Claimant
Malplast Industries Limited
Respondent
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment delivered on 12th March 2018 should be set aside.
- 2 Whether the Respondent demonstrated a defence on the merits to warrant reopening the suit.
Ratio Decidendi
The court found that the Respondent failed to provide a sufficient basis to set aside the ex parte judgment. The Respondent's defence and statements had already been considered, and there was no merit in allowing a party that was indolent in its conduct to delay the conclusion of litigation. The application to set aside the judgment was therefore dismissed.
Court Disposition
application dismissed
Orders
- The Respondent's application to set aside the ex parte judgment is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CASE NO. 185 OF 2017
VICTOR AMOS NANDI OTIPA.......................CLAIMANT
VERSUS
MALPLAST INDUSTRIES LIMITED........RESPONDENT
RULING
1. The application before me is the notice of motion application dated 14th March 2018 seeking to set aside the judgment of the court issued on 12th March 2018 and for hearing de novo. The motion seeks the setting aside as the Respondent’s advocate did not attend the taking of a hearing date on 30th November 2017 as directed by the court. The Respondent asserts that it has a defence to the claim. The matter proceeded in the absence of the Respondent or their counsel.
2. The Claimant filed submissions in which it asserted that the Respondent’s motion would be time consuming exercise with no success as the Respondent was duly served and had participated in the hearing date being obtained.
3. The criteria for setting aside judgment is well set out in decisions of the Court of Appeal. On my part, I think it is reasonably plain that in order to obtain a setting aside of an ex partejudgment certain criteria must be met. An ex partejudgment is a judgment that is obtained in the absence of a party or in default of the party appearing and defending the cause. It is not similar to a regular judgment that is obtained on the merits after hearing both parties. In the case of Patel vE. A. Cargo Handling Services Ltd [1974] E.A. 75Duffus P. held as follows:-
The main concern of the court is to do justice to the parties and the court will not impose conditions in itself to fetter the wide discretion given to it by the rules. I agree that where there is a regular judgment the as is the case here, the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on merits does not mean in my view, a defence that must succeed, it means as Sheridan J. put it ‘a triable issue’ that is an issue which raises aprima facie defence and should go to trial for adjudication.
4. In this motion, even after considering the arguments advanced by the Respondent/Applicant, I do not discern a basis to allow the motion to reopen the suit. The Respondent’s defence and statements were considered and there is no merit in allowing a party that was indolent in its conduct to delay the end of litigation. I dismiss the application by the Respondent but make no order as to costs.
It is so ordered.
Dated and delivered at Nyeri this 20th day of November 2018
Nzioki wa Makau
JUDGE