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ELRCDismissedCause (not stated in judgment; Motion dated 11 October 2024 in the Cause)

Bett v Lavington Security Limited (Cause 398 of 2018) [2025] KEELRC 41 (KLR)

Employment and Labour Relations Court
23 January 2025
503 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A company that ignored court summons and couldn't show a real defence lost its bid to undo an unfair termination judgment against it.

What this practically means

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Executive summary

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In 2023 the Employment and Labour Relations Court entered an ex-parte judgment on 9 November 2023 finding that Lavington Security Ltd had unfairly terminated the employment of Mike Kiplangat Bett, with a certificate of costs and warrants of attachment issued on 1 October 2024. The Respondent then filed the Motion dated 11 October 2024 seeking to set aside the judgment, decree, certificate of costs and warrants, and for unconditional leave to defend the Claim, contending that it only learnt of the Cause upon being served with warrants, that Summons had not been served, and that it had an arguable defence. The Court granted an interim stay on condition that the decretal sum be deposited in Court, which the Respondent complied with. The Claimant opposed, asserting that service had been effected and acknowledged, that the Motion was presented by a stranger, and that he was entitled to the fruits of judgment. The Respondent cited Chemwolo v Kubende and Fidelity Commercial Bank Ltd v Owen Amos Ndungu on the discretion to set aside irregular judgments; the Claimant filed no submissions. The Court held that the record showed the Respondent had been served with and acknowledged service of Summons and Statement of Claim on 7 September 2018 by stamping copies returned to Court, making the judgment regular rather than irregular, and that the Respondent had not demonstrated an arguable defence through affidavit or draft Response. The Motion was dismissed with no order on costs because the Claimant had not filed submissions as directed. Judgment delivered virtually at Nairobi on 23 January 2025 by Radido Stephen, Judge.

Questions the Court framed

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

  1. 1.Whether the ex-parte judgment of 9 November 2023 was regular or irregular, having regard to service of Summons and Statement of Claim
  2. 2.Whether the Respondent had demonstrated an arguable defence entitling it to unconditional leave to defend
  3. 3.Whether the Motion dated 11 October 2024 should be allowed

Key legal issues

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01

Regularity of the ex-parte judgment

Holding

The judgment of 9 November 2023 was regular because the Respondent was served and acknowledged service of Summons and Statement of Claim on 7 September 2018 by stamping copies returned to the Court.

Reasoning

The Court examined the record and found stamped copies of the Summons and Statement of Claim acknowledging service on 7 September 2018. The Respondent's contention that Summons had not been served, having only learnt of the Cause when warrants of attachment were served, was contradicted by the documentary record. Consequently, the ex-parte judgment could not be treated as an irregular judgment amenable to being set aside as of course.

p. 2
02

Arguable defence for leave to defend

Holding

The Respondent failed to demonstrate an arguable defence either in the supporting affidavit or through a draft Response, so leave to defend was refused.

Reasoning

Even where a judgment may be irregular, a party seeking leave to defend must show a triable defence. The Respondent relied only on a bare assertion that it had an arguable defence and expressed readiness to abide by conditions, but placed no evidence or draft pleadings before the Court. Without material demonstrating the defence, the Court exercised its discretion against granting leave, and the interim stay already complied with did not change the outcome.

p. 2

Legal principles established

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  • Where a party has been served with and acknowledged service of Summons, the ex-parte judgment entered is regular, and setting it aside requires demonstration of an arguable defence.

Court orders

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  1. 1.The Motion dated 11 October 2024 was found without merit and dismissed
  2. 2.No order on costs, since the Claimant did not file submissions as directed

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court over the Cause and an application for leave to defend and to set aside the ex-parte judgment

Relief refused

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Setting aside of the ex-parte judgment of 9 November 2023, the decree, the Certificate of Costs and the warrants of attachment issued on 1 October 2024, together with all consequential orders

The judgment was regular because the Respondent had been served with, and acknowledged service of, Summons and Statement of Claim on 7 September 2018

p. 2

Unconditional leave to canvass and/or defend the Claim

The Respondent failed to demonstrate the arguable defence it purported to have

p. 2

Costs of the application

The Claimant did not file submissions as directed

p. 2

Costs

No order on costs, since the Claimant did not file submissions as directed

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.

the record shows that the Respondent was served and acknowledged service of Summons and Statement of Claim on 7 September 2018, by stamping on copies which were returned to the Court.
p. 2Regular judgment following acknowledged service
The judgment is thus regular and not irregular as suggested by the Respondent.
p. 2Characterisation of the ex-parte judgment
The Motion dated 11 October 2024 is found without merit and is dismissed with no order on costs since the Claimant did not file submissions as directed.
p. 2Final orders and costs

Issues in the judgment

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minor

The cause number of the underlying Cause is not stated in the judgment; the application is identified only as the Motion dated 11 October 2024.

minor

The judgment states the Motion was filed on 15 October 2024 but the final orders refer to a Motion dated 11 October 2024.

minor

The relief sought in the Motion at grounds (i) and (ii) is elided with ellipses in the judgment.

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, "Bett v Lavington Security Limited (Cause 398 of 2018) [2025] KEELRC 41 (KLR)", Case Analysis (2025). Cause (not stated in judgment; Motion dated 11 October 2024 in the Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/41/eng@2025-01-23

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