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ELRCDismissedNot stated in the extract provided

Kenya Chemical Workers' Union v Mac’s Pharmaceuticals Limited (Cause E912 of 2023) [2025] KEELRC 1402 (KLR)

Employment and Labour Relations Court
15 May 2025
750 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen a judgment against Mac's Pharmaceuticals because the company never explained why it stayed silent in court.

What this practically means

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Executive summary

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This was a ruling on a Motion dated 25 February 2025 by Mac's Pharmaceuticals Ltd, the Respondent in an employment Cause, seeking to set aside a judgment delivered on 3 April 2024 together with consequential orders, to reinstate its Memorandum of Response for hearing on merit, and for leave to file the Memorandum of Response out of time, attributing its non-participation to suspension by the Pharmacy and Poisons Board and resulting financial hardship. The Union (Claimant) opposed through a replying affidavit and submissions, contending that the Respondent was served but opted not to participate, that a regular judgment was delivered, and that enforcement was vital to secure the rights of former employees under two Collective Bargaining Agreements. Earlier, the Court had granted an interim stay of execution on condition that the Respondent deposit the decretal sum of Kshs 500,000/- into Court, a condition the Respondent never complied with; it also filed submissions late and without explanation. The Court found that the Respondent did not deny service, and that although the Pharmacy and Poisons Board had ordered a stoppage of manufacturing from 27 July 2023, the Respondent failed to show how that order made it impossible to participate in the proceedings or instruct an advocate. Holding that the Respondent had not set out sufficient grounds for the exercise of the Court's discretion, the Court dismissed the Motion as without merit and, because of the unexplained late filing of submissions, condemned the Respondent to pay the Union's costs of the Motion. Judgment was delivered virtually, dated and signed in Nairobi on 15 May 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 Respondent established sufficient grounds for the Court to exercise its discretion to set aside the judgment delivered on 3 April 2024 and reinstate its Memorandum of Response
  2. 2.Whether the Respondent should be granted leave to file its Memorandum of Response and supporting documents out of time
  3. 3.Whether the Respondent explained its failure to participate in the Court process and its non-compliance with the condition for interim stay of execution

Key legal issues

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01

Whether the Respondent was condemned unheard such that the judgment of 3 April 2024 should be set aside

Holding

The judgment was regular; the Respondent was served but chose not to participate, and its suspension by the Pharmacy and Poisons Board did not prevent it from defending the Cause

Reasoning

The Court found that service was not denied. The stoppage of manufacturing by the regulator caused financial hardship, but nothing in that order prevented the Respondent from instructing counsel or bringing its difficulties to the Court's attention. Failure to comply with the condition for interim stay further weighed against the exercise of discretion.

p. 2
02

Whether the Court's discretion to set aside the judgment and grant leave to file a defence out of time should be exercised

Holding

The discretion was not exercised in the Respondent's favour because it did not comply with the condition for interim stay and advanced no sufficient ground

Reasoning

The Court acknowledged it had discretion (as supported by the authorities cited by the Respondent) but held that the applicant's conduct - non-compliance with the deposit condition and unexplained late filing of submissions - disentitled it from the discretionary relief sought.

p. 2

Legal principles established

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  • A party seeking the exercise of the Court's discretion to set aside a regular judgment must both comply with conditions attached to interim relief and set out sufficient grounds for the discretion to be exercised in its favour
  • Financial or regulatory difficulties do not excuse non-participation in court proceedings unless the party shows they made participation or instruction of an advocate impossible

Court orders

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  1. 1.The Motion dated 25 February 2025 is found without merit and is dismissed
  2. 2.The Respondent is condemned to pay the Union's costs of the Motion due to the late filing of submissions without any explanation

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 (interlocutory Motion in a Cause); no specific constitutional or statutory provision is quoted in the judgment.

Relief refused

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Setting aside the judgment delivered on 3 April 2024 and all consequential orders, and reinstatement of the Respondent's Memorandum of Response for hearing on merit

The Respondent failed to comply with the condition for interim stay of execution and did not set out sufficient grounds for the exercise of the Court's discretion; it did not establish that the regulator's stoppage order made participation impossible

p. 2

Leave to file the Memorandum of Response and supporting documents out of time

The alleged regulatory suspension and financial hardship did not explain the failure to instruct an advocate or participate in the proceedings

p. 2

Costs of the application to be in the cause

Costs were instead awarded to the Union owing to the Respondent's unexplained late filing of submissions

p. 2

Costs

Due to the late filing of submissions without any explanation, the Respondent is condemned to pay the Union's costs of the Motion.

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 Respondent has not denied that it was served with Court process.
p. 2Service of process - regularity of judgment
the Respondent has not established how the stoppage order from the Pharmacy and Poisons Board made it impossible for it to participate in the Court process or to instruct an advocate to act on its behalf
p. 2Setting aside judgment - burden on applicant
It did not comply with a condition upon which the Court granted it an interim stay of execution. It has not set out a suficient ground for the Court to exercise the discretion in its favour.
p. 2Exercise of discretion - non-compliance with conditions
The Motion dated 25 February 2025 is found without merit and is dismissed.
p. 2Disposition - final orders
Due to the late filing of submissions without any explanation, the Respondent is condemned to pay the Union's costs of the Motion.
p. 2Costs order

Issues in the judgment

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minor

The name of the Claimant Union is not stated anywhere in the judgment extract; it is referred to only as 'the Union', making full party identification impossible

minor

The Cause number/case number and neutral citation are not stated in the judgment extract

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, "Kenya Chemical Workers' Union v Mac’s Pharmaceuticals Limited (Cause E912 of 2023) [2025] KEELRC 1402 (KLR)", Case Analysis (2025). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1402/eng@2025-05-15

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