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ELRCDismissedNot stated in judgment· [2019] KEELRC 32 (KLR)

Ishumail Mchombo Iha v Badar Hardware Limited [2019] KEELRC 32 (KLR)

Employment and Labour Relations Court
19 December 2019
LNLINNET NDOLO
897 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reopen a default employment judgment because the employer offered no real evidence of why its lawyers missed the hearing.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (Linnet Ndolo, J) determined a Notice of Motion dated 24th May 2019 by the Respondent seeking stay of further proceedings including taxation of the Claimant's Bill of Costs, setting aside of ex parte proceedings taken on 9th April 2018, and leave to defend a claim in which judgment had been entered for the Claimant on 7th February 2019 in the sum of Kshs. 331,617 plus costs and interest for wrongful dismissal. The Respondent, which had entered appearance and filed a Response and witness statement, blamed its Advocate's failure to diarise the hearing date of 9th April 2018. The Claimant opposed, arguing the court was functus officio, no security had been offered, and no good reason for setting aside had been shown. Relying on the Court of Appeal's decision in Kwanza Estates Limited v Dubai Bank Kenya Limited (In Liquidation) & 2 others [2019] eKLR, the court held that the power to set aside an ex parte judgment is discretionary and must rest on sound and reasonable grounds. The Respondent produced no diary extract to substantiate the alleged mistake, ignored directions to file submissions, and did not respond to the Bill of Costs. The application was dismissed with costs to the Claimant.

Key legal issues

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01

Whether the Respondent made a case for setting aside the ex parte judgment of 7th February 2019

Holding

The application was dismissed; the Respondent did not merit the exercise of the court's discretion

Reasoning

The court treated its power to set aside an ex parte judgment as discretionary, per the Court of Appeal in Kwanza Estates Limited v Dubai Bank Kenya Limited. Discretion must rest on sound and reasonable grounds. The Respondent attributed non-attendance to its Advocate's failure to diarise the hearing date but produced no extract of the diary to substantiate this. It also ignored directions to file submissions and did not respond to the Bill of Costs, demonstrating indifference to the cause.

p. 2

Legal principles established

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  • The power of the court to set aside an ex parte judgment is discretionary
  • Judicial discretion must be grounded on sound and reasonable grounds

Court orders

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  1. 1.The Respondent's Notice of Motion dated 24th May 2019 seeking stay of proceedings, setting aside of ex parte proceedings and leave to defend is dismissed
  2. 2.Costs of the application awarded to the Claimant
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction over claim for compensation for wrongful dismissal (Employment and Labour Relations Court Act)

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, "Ishumail Mchombo Iha v Badar Hardware Limited [2019] KEELRC 32 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/32/eng@2019-12-19

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