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ELRCDismissedELRC No. 1317 of 2014 (Application dated 22nd December 2020)· [2021] KEELRC 1337 (KLR)

Roy Transmotors vJoseph Mbilu Odhiambo & another [2021] KEELRC 1337 (KLR)

Employment and Labour Relations Court
2 June 2021
NMNzioki Wa Makau
1,932 words in judgment
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The bottom line

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A Kenyan court refused to undo a judgment entered against an employer that skipped its hearing, ruling that blaming your lawyer is not enough to reopen a case.

What this practically means

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Executive summary

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This judgment disposes of a Notice of Motion dated 22nd December 2020 in which Roy Transmotors Limited, the respondent in ELRC Cause No. 1317 of 2014 (Joseph Mbilu Odhiambo v Roy Transmotors Limited), sought to set aside an ex parte judgment delivered on 12th May 2020 and to restrain execution. The Applicant, previously represented by M/s Simiyu Opondo Kiranga & Company Advocates, said it learned of the judgment only when served with a warrant of attachment and proclamation notice on 17th December 2020, and argued that its advocate's indolence should not be visited upon it, relying on authority that a litigant should not suffer for counsel's errors. The 1st Respondent countered that the Applicant was represented and served throughout the proceedings - including at the hearing of 18th July 2019 and delivery of judgment - and that the motion was a delaying tactic, citing the requirement to show sufficient cause and a reasonable defence. The 2nd Respondent auctioneer filed nothing. Nzioki Wa Makau J held that the Applicant had been represented at all material times, that its advocates were aware of and involved in the proceedings up to judgment, and that any grievance against former advocates lay in a separate action. The Applicant failed to explain its non-attendance and laid no basis for the court's discretion. The motion was dismissed with costs to the Respondents, and execution was permitted to proceed.

Key legal issues

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01

Whether the ex parte judgment of 12th May 2020 should be set aside for non-attendance

Holding

The application for setting aside was dismissed; the Applicant did not demonstrate sufficient cause for non-attendance

Reasoning

The court found the Applicant was represented throughout the underlying suit by M/s Simiyu Opondo Kiranga & Company Advocates, was served with hearing, mention and judgment notices, and its advocate took delivery of the judgment. Blame shifted to former counsel could not vitiate the proceedings; at most it grounded a separate action against the advocates. The Applicant failed to explain its absence on the hearing date, so the court declined to exercise its discretion in its favour.

p. 3
02

Whether execution of the decree should be restrained

Holding

No restraining order was issued; execution may proceed

Reasoning

Having failed to establish grounds for setting aside the judgment, the Applicant had no basis for an injunction against execution. The 2nd Respondent auctioneer filed no replies or submissions and the decree of 8th December 2020 remained valid. The court held that judgments are not made for cosmetic purposes and litigation must come to an end, so the fruits of judgment could not be denied the Claimant.

p. 3

Legal principles established

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  • A party is responsible for keeping tabs on its own case and its progress in court; blame of a former advocate does not excuse non-attendance
  • In an application to set aside ex parte judgment, the court considers both reasons for non-attendance and whether a reasonable/triable defence is shown

Court orders

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  1. 1.The Notice of Motion dated 22nd December 2020 is dismissed
  2. 2.Costs of the application awarded to the Respondents
  3. 3.Execution may proceed
Jurisdiction invoked
Inherent discretion of the Employment and Labour Relations Court to set aside ex parte judgment (Notice of Motion arising from ELRC No. 1317 of 2014)

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, "Roy Transmotors vJoseph Mbilu Odhiambo & another [2021] KEELRC 1337 (KLR)", Case Analysis (2021). ELRC No. 1317 of 2014 (Application dated 22nd December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1337/eng@2021-06-02

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