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Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the excerpt

Kevin Michael Dunlop v CMC Motors Group Limited & another [2014] KEELRC 16 (KLR)

Industrial Court (Employment and Labour Relations Court)
19 December 2014
270 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to strike out a defence filed on time but served late, and refused a Kshs.12.5 million security deposit.

What this practically means

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Executive summary

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The Claimant filed a notice of motion dated 25th February 2014 in an employment dispute before the Industrial Court at Nairobi, seeking two orders: first, that the 1st Respondent's Statement of Defence dated 16th December 2013 and filed on 18th December 2013 be struck out and judgment entered in the Claimant's favour as prayed in the Memorandum of Claim; and second, in the alternative, that the 1st Respondent deposit Kshs.12,504,076.00 in court as security for satisfaction of any decree. Matheus N. Nduma, Principal Judge, dismissed the application. On the first prayer, the court held there was no basis for striking out the defence: the Memorandum of Defence was already in the court file, the Claimant was at liberty to obtain a copy and respond, and a reasonable explanation had been given for the delay in service. On the second prayer, the court noted that the 1st Respondent was a public company listed on the Kenya Stock Market, and that if it were taken over by prospective buyers, the law governing such a takeover would cover the interests of persons with pending suits against it. The security application therefore lacked merit and was dismissed with costs on 19th December 2014. The main suit remains pending before the court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st Respondent's Statement of Defence dated 16th December 2013 and filed on 18th December 2013 should be struck out and judgment entered for the Claimant as prayed in the Memorandum of Claim
  2. 2.Whether in the alternative the 1st Respondent should be ordered to deposit Kshs.12,504,076.00 in court as security for satisfaction of any decree

Key legal issues

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01

Whether the Statement of Defence should be struck out for failure/delay in service

Holding

No; the defence is on the court file and the explanation for the delay was reasonable, so the applicant may simply obtain a copy and respond

Reasoning

The court found that the Memorandum of Defence was already in the court file, meaning the Claimant suffered no prejudice and could access and respond to it. A reasonable explanation existed for the delay in service. Striking out a defence is a draconian remedy not warranted in these circumstances, so the first prayer failed.

p. 2
02

Whether security for due satisfaction of a decree should be ordered against the 1st Respondent

Holding

No; the 1st Respondent is a listed public company and any takeover would be governed by law protecting litigants with pending suits

Reasoning

The court reasoned that because the 1st Respondent is a public company listed on the Kenya Stock Market, any prospective takeover would be regulated by law, and that regulatory regime would safeguard the interests of persons with pending suits against it. The deposit of Kshs.12,504,076/= as security was therefore unnecessary and the prayer lacked merit.

p. 2

Legal principles established

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  • A defence on the file with a reasonable explanation for delay in service is not a candidate for striking out

Court orders

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  1. 1.The application for striking out the Statement of Defence was refused (no basis for the orders sought)
  2. 2.The application to compel the 1st Respondent to deposit Kshs.12,504,076/= as security is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court (Industrial Court) first-instance jurisdiction over the Memorandum of Claim; no specific provision quoted

Relief refused

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Striking out the 1st Respondent's Statement of Defence and entering judgment for the Claimant

The Memorandum of Defence is on the court file and a reasonable explanation was given for the delay in serving it

p. 2

Order for deposit of Kshs.12,504,076.00 as security

The 1st Respondent is a publicly listed company and the law governing any takeover would protect persons with pending suits against it

p. 2

Costs

The application is dismissed with costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Application to get the 1st Respondent to deposit the sum of Kshs.12,504,076/= as security for satisfaction of any decree that may be passed against it lacks merit and same is dismissed with costs.
p. 2Final orders - dismissal with costs
There is no basis at all for the orders sought in that: the Memorandum of Defence is in the Court file
p. 2Refusal to strike out defence

Issues in the judgment

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minor

The numbering of the judgment's paragraphs is irregular (jumps from paragraph 2 to paragraphs 4 and 5; paragraph 3 appears missing), suggesting an incomplete record

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kevin Michael Dunlop v CMC Motors Group Limited & another [2014] KEELRC 16 (KLR)", Case Analysis (2014). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/16/eng@2014-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.