Mary Emily Atieno v Rajkumar S Patil & another [2021] KEELRC 256 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents were properly served with the notice of motion dated 1st December, 2020
- 2.Whether the ex parte orders/interlocutory judgment issued on 4th December, 2020 should be set aside to allow the respondents a hearing on the merits
Key legal issues
#Whether service was proper despite the application having been received by the respondent's secretary
Service was proper - the secretary accepted service, but the limited time to respond breached the respondents' right of reply
The claimant demonstrated the process server's copy was stamped by the secretary, and Mr Patil confirmed the application was on his desk by 4th December 2020. However, only 2 clear days were allowed before hearing, contrary to Rule 17 read with Rules 13 and 14 of the ELRC Procedure Rules, 2016, which require at least 14 days for reply absent exceptional circumstances.
Whether the ex parte interlocutory judgment should be set aside
Yes - set aside so the claim may be heard on the merits, as the claimant showed no prejudice
The court's discretion to set aside ex parte judgments is aimed at avoiding injustice from inadvertence or excusable error. The application to set aside was filed without delay, and the claimant did not state what prejudice she would suffer if the respondent were heard. Doing justice required that the respondents be allowed to file a defence and respond to the application, and the claim be heard on the merits.
Legal principles established
#- The discretion to set aside ex parte judgment exists to avoid injustice from accident, inadvertence or excusable error, not to assist deliberate obstruction or delay.
- A respondent should ordinarily be given at least 14 days to reply before an application is heard, absent stated exceptional circumstances.
- The right to reply to pleadings once served is secured under Article 50 of the Constitution.
Court orders
#- 1.Orders issued on 1st December, 2020 are set aside
- 2.Respondent given 14 days to file a response to the claim and a Replying Affidavit to the application and notice of motion dated 1st December, 2020
- 3.Claimant to have a right of reply within 14 days of service, after which parties to attend and be allocated a hearing date
- 4.Claim to be heard on the merits
- 5.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 Rules 4 and 7 of the Civil Procedure Rules; Employment and Labour Relations Court (Procedure) Rules, 2016
Quotable passages
#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 purpose of clothing the court with discretion to set aside ex-parte judgment is to avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice
Ordinarily under Rule 17 read together with Rule 13 and 14 of the Employment and Labour Relations Court (Procedure) Rules, 2016 a respondent should be given at least 14 days right of reply before an application is heard unless there are prevailing exceptional circumstances and which must be stated
Accordingly, Orders issued on 1st December, 2020 are hereby set aside. The respondent is given 14 days to file a response to the claim, file a Replying Affidavit to application and notice of Motion dated 1st December, 2020
The claim shall be heard on the merits. Costs in the cause.
Issues in the judgment
#The judgment records the matter as an 'interlocutory judgement' given on 4th December, 2020 while the application seeks vacation of 'exparte orders' issued on the same date; the description of the 4th December decision is inconsistent within the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Emily Atieno v Rajkumar S Patil & another [2021] KEELRC 256 (KLR)", Case Analysis (2021). Not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/256/eng@2021-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.