Charles v Chebwayi Adventist Complex (College) (Cause 322 of 2017) [2023] KEELRC 364 (KLR)
The bottom line
#A Kenyan employer failed to set aside a default judgment because it could not prove it was never served with court documents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is sufficient evidence to warrant the setting aside of the judgment on record
- 2.Whether the respondent was served with the claim documents
- 3.Whether any other ground exists to warrant setting aside the ex-parte judgment
Key legal issues
#Sufficiency of evidence to warrant setting aside default judgment
Service was effected and the respondent advanced no other ground; the application failed.
The court examined the affidavits of service and found the respondent's denial of service unsubstantiated. Having found service effected, the court considered whether any other ground justified setting aside the ex-parte judgment. It concluded the respondent relied solely on the non-service averment and offered nothing else, so the application was unmerited and dismissed with costs.
Legal principles established
#- A party seeking to set aside a default judgment on the basis of non-service must demonstrate that service was not effected; bare assertions that it was not served do not suffice.
Court orders
#- 1.The respondent's application dated December 9, 2020 is dismissed
- 2.Costs of the application to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Employment and Labour Relations Court to set aside ex-parte/default judgments (not expressly cited in the judgment)
Relief refused
#Stay of execution of the decree pending inter partes hearing
Application dismissed in its entirety
Setting aside the default judgment/award and leave to defend the claim
Service was effected and no other ground for setting aside was established
Costs
Application dismissed with costs to the claimant
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.
I have considered the evidence regarding service in the application before me and I do not need to belabor much on the issue as I find that the claims that the respondent was not served does not hold any water.
I find that the respondent has not convinced this court that there is any other ground upon which the judgment of this court can be set aside.
I find that the respondent's application dated December 9, 2020 is not merited and the same is dismissed with costs.
Issues in the judgment
#The judgment does not state the case number or the parties' names; it refers only to 'the claimant' and 'the respondent'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles v Chebwayi Adventist Complex (College) (Cause 322 of 2017) [2023] KEELRC 364 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/364/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.