Nyamweya v Chairman, Secretary, Treasurer Imara Daima Adventist Academy (Miscellaneous Case 1304 of 2018) [2024] KEELRC 2290 (KLR)
The bottom line
#A Kenyan employment court refused to undo a default judgment, ruling that a party who ignores court notices for five years cannot simply blame its lawyer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.the nature of the defence
- 2.the period of delay
- 3.whether any prejudice will be suffered by Respondent
Key legal issues
#Whether the default judgment entered on 27th February, 2023 should be set aside and the Applicant granted unconditional leave to defend
Application dismissed; no triable issue, inordinate unexplained delay, and no prejudice to the Respondent since litigation must come to an end
The court considered the nature of the defence, the period of delay and prejudice. The draft defence was a mere denial; the payment of Kshs 50,000 as termination package did not excuse failure to defend. Delay of over 5 years, and 9 months after service of judgment, was unexplained. Notices were served on the Respondent's advocates without action. Blaming counsel was insufficient, and litigation must come to an end.
Whether the delay in bringing the application was satisfactorily explained
Delay of over 5 years was not satisfactorily explained; the law aids the vigilant and not the indolent
Judgment was served in May 2023 but the application was only filed on 31st January 2024, about 9 months later. The Claimant demonstrated that invitation letters, mention notices and hearing notices were served on the Respondent's advocates without action. The court found the explanation unsatisfactory.
Legal principles established
#- The court's discretion to set aside ex parte judgment is free, exercised to avoid injustice or hardship, not to assist deliberate obstruction or delay
- Blaming the advocate on record is not sufficient reason to set aside a judgment after inordinate delay
Court orders
#- 1.Application dated 31st January, 2024 dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 1A, 1B and 3A of the Civil Procedure Act; Rule 17(1), (2) and (3) of the Employment and Labour Relations Court (Procedures) Rules, 2016; Order 10 Rule 11 and Order 42 of the Civil Procedure Rules, 2010
Relief refused
#Setting aside the default judgment entered on 27th February, 2023
The intended defence amounted to a mere denial and the explanation for over 5 years of delay was unsatisfactory
Unconditional leave to defend the suit
No triable issue disclosed in the draft defence; the law aids the vigilant and not the indolent
Stay of proceedings relating to taxation of the bill of costs
Ancillary to the dismissed application
Costs
Application dismissed with costs (costs to the Claimant/Respondent)
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.
Having regard to the undisputed facts, findings and observations already made, the court is not satisfied that Applicant deserves the discretionary orders sought in the application and the same is hereby dismissed with costs
The court is therefore in agreement with the Claimant sentiments that the law aids the vigilant and not the indolent.
The discretion of a court to set aside or vary ex-parte judgment entered in default of appearance or defence is a free one and is intended to be exercised to avoid injustice or hardship but not to assist a person guilty of deliberate conduct intended to obstruct or delay the course of justice.
it was not enough for a party in litigation to simply blame the Advocate on record for all manner of transgressions in the conduct of litigation.
Issues in the judgment
#Judgment numbers paragraphs 21 and 28 in sequence out of order and omits paragraph 20; paragraph 28 appears twice with different content
The judge signs as 'Presiding Judge-Appeals Division' although the matter is a first-instance application; the case number and parties' full names are not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyamweya v Chairman, Secretary, Treasurer Imara Daima Adventist Academy (Miscellaneous Case 1304 of 2018) [2024] KEELRC 2290 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2290/eng@2024-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.