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ELRCDismissedNot stated in the judgment

Cresenco Cleofas v Lantech Africa Limited [2021] KEELRC 282 (KLR)

Employment and Labour Relations Court
18 November 2021
2,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The respondent, Lantech Africa Limited, through its CEO Aquinas Wasike, brought a notice of motion dated 7th September, 2021 seeking stay of proceedings including the taxation of a party and party bill of costs scheduled for 21st September, 2021, review, variation or setting aside of the ex-parte default judgment entered on 28th June, 2021, an order that the applicant attend court or tender his passport for examination, and leave to defend the claim on merits. The respondent contended it was never properly served with hearing notices, that the process server lacked a 2020 licence, and that the claimant, a foreigner in the Philippines, gave virtual evidence outside the court's jurisdiction without express permission. The claimant opposed, showing returns of service for hearings fixed on 25th February 2020, 9th February 2021 and 20th May 2021 at which the respondent never appeared, and that virtual proceedings were conducted under the Chief Justice's Practice Directions of 20th March, 2020 issued to address the COVID-19 pandemic. The process server filed a supplementary affidavit confirming his valid 2020 licence. Applying Rule 33 of the ELRC (Procedure) Rules, 2016 and the authorities on sufficient cause, the court held there was no new matter, mistake or clarification warranting review, that service was proper, that the CEO was privy to the proceedings and could not blame counsel, and that rushing to review after sitting back to await judgment was an abuse of process. The passport order served no legitimate purpose. The application was dismissed in its entirety with costs to the claimant.

Questions the Court framed

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

  1. 1.Whether the court should stay the proceedings, including the taxation of the Party & Party bill of costs
  2. 2.Whether the court should review, vary and/or set aside the judgment delivered on 28th June, 2021
  3. 3.Whether the court should direct the applicant to attend court or tender his passport for examination
  4. 4.Whether the applicant should be allowed to defend the claim on merits rather than on procedural technicalities

Key legal issues

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01

Whether the ex-parte default judgment of 28th June, 2021 should be reviewed, varied or set aside

Holding

The application for review failed; there was no new matter, no mistake on the record, no need for clarification and no sufficient cause, and service of hearing notices on all occasions was proper

Reasoning

Rule 33(1) of the ELRC (Procedure) Rules, 2016 sets out the grounds for review. The court found none established. Service of the hearing notices for 25th February 2020, 9th February 2021 and 20th May 2021 was proved by returns of service by a duly licensed process server, whose 2020 licence was valid. The CEO was privy to the proceedings but opted not to attend, so the default could not be attributed to counsel alone.

p. 3
02

Whether virtual taking of evidence from a claimant abroad without express permission vitiated the judgment

Holding

The court was satisfied to hear the claimant via video conferencing pursuant to the Chief Justice's Practice Directions of 20th March, 2020 issued to address the COVID-19 pandemic

Reasoning

The claimant was in the Philippines and could not attend physically. Virtual proceedings had become the norm during the COVID-19 pandemic and were augmented by the Practice Directions on Electronic Case Management. The court, having found proper service, properly proceeded to hear the claimant on the merits under those directions.

p. 2
03

Whether an order should issue that the applicant attend court or tender his passport for examination

Holding

No such order was made; the orders sought were couched against the applicant (the respondent) and, given the validity of the judgment, such an order would serve no legitimate purpose

Reasoning

The application was filed by the respondent as the applicant. If the intention was to compel the claimant to attend or tender a passport, that intention was not apparent from the way the orders were couched. With the judgment found valid, summoning the applicant to tender a passport would serve no legitimate purpose.

p. 3

Legal principles established

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  • An applicant seeking review, variation or setting aside of a judgment must demonstrate discovery of new matter, a mistake on the record, need for clarification or other sufficient cause, and bears the burden of showing good cause
  • A litigant who is aware of a hearing date but finds it unsuitable must attend court and urge its case; to sit back and wait for judgment and then seek review is an abuse of court process
  • A litigant is bound by the acts and omissions of his advocate but should not bear the consequences of counsel's default unless privy to it or it results from failure to give due instructions

Court orders

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  1. 1.The application dated 7th September, 2021 is dismissed in its entirety
  2. 2.Costs to the claimant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution; sections 16 and 20 of the Employment and Labour Relations Court Act; Judicature Act; Order 12 Rules 2 and 7 and Order 51 Rule 1 of the Civil Procedure Rules

Relief refused

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Stay of proceedings including taxation of the Party & Party bill of costs

The taxation scheduled for 21st September, 2021 was overtaken by events, and the court found no good cause justifying review or setting aside of the judgment

p. 2

Review, variation and/or setting aside of the ex-parte default judgment of 28th June, 2021

No new matter discovered, no mistake apparent on the record, no need for clarification and no sufficient or good cause demonstrated; service of hearing notices was proper

p. 3

Order that the applicant attend court or tender his passport for examination

The application was filed by the respondent as the applicant, so any order against the applicant would serve no legitimate purpose

p. 3

Leave to defend the claim on merits

Proper service was effected; the respondent's absence was without good cause and the claim was already heard on the merits

p. 3

Costs

Costs to the claimant

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.

Accordingly, application dated 7th September, 2021 is dismissed in its entirety. Costs to the claimant.
p. 3Final orders - dismissal and costs
The court finds no good cause that is sufficient to justify the review and or setting aside of the judgement delivered on 28 th June, 2021. The judgement herein is proper and valid.
p. 3Review - failure to demonstrate good cause
To sit back and wait for judgement to issue and then rush seeking to review, vary or have the same set aside is abuse of court process.
p. 3Abuse of court process
Far from it. the court finds there was proper service of Hearing Notice. the respondent failed to attend and the claim was heard on the merits.
p. 3Service and ex-parte hearing
He cannot purport to state that this was the mistake of counsel.
p. 3Litigant bound where privy to default

Issues in the judgment

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minor

The deponent's name is rendered inconsistently in the judgment as 'Aquinas Wasike', 'Masike' and 'Mr Masika'

minor

Internal date inconsistencies: affidavit of 30th August appears as '201' in one place, and a hearing date allocated for 25th February, 2020 is later described as 25th November, 2020

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, "Cresenco Cleofas v Lantech Africa Limited [2021] KEELRC 282 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/282/eng@2021-11-18

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