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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 3747 (KLR)

Kenya Union of Road Contractors and Civil Engineering Workers v China Railway No 7 Engineering Group (Employment and Labour Relations Cause E081 of 2024) [2025] KEELRC 3747 (KLR)

Employment and Labour Relations Court
22 December 2025
MOMAUREEN ONYANGO
972 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court set aside a default judgment against an employer, ruling that a lawyer's filing mistake shouldn't deny a party its day in court.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court (Maureen Onyango, Judge) delivered virtually on 22nd December 2025 on a Chamber Summons application dated 4th August 2025 by the Respondent. The Respondent sought a stay of the judgment scheduled for 16th October 2025, setting aside of the interlocutory judgment entered in default together with all consequential orders, and unconditional leave to defend the suit. The Respondent explained that although its counsel entered appearance and uploaded the Statement of Response onto the CTS e-filing portal, it was mistakenly believed the filing fees had been paid when the payment had not gone through; counsel was also allegedly never served with the pre-trial notice for 25th February 2025, leading to interlocutory judgment in favour of the Claimant. The Claimant, through a Replying Affidavit sworn by its National General Secretary, Charles Osicho, opposed the application as incompetent and an abuse of process, contending the Respondent was aware of proceedings, had undertaken to file a response, and was guilty of indolence, thereby frustrating rights under Article 41 of the Constitution. The court found the discretion to set aside default judgment must be exercised judiciously. Although the explanation revealed a degree of counsel's negligence, mistakes of counsel should not automatically shut a party out of the seat of justice absent irreparable prejudice. Guided by Articles 50 and 159(2)(d), the court allowed the application, set aside the interlocutory judgment and consequential orders, granted unconditional leave to defend within fourteen days, allowed the Claimant fourteen days to reply, and awarded throw-away costs of Kshs. 20,000 to the Claimant.

Key legal issues

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Whether the interlocutory judgment entered in default should be set aside and leave to defend granted

Holding

The application was allowed: the default judgment was set aside and unconditional leave to defend was granted, subject to throw-away costs.

Reasoning

The court held that the power to set aside default judgment is discretionary and must be exercised judiciously. Although the Respondent's explanation showed a degree of negligence by counsel, the law is settled that mistakes of counsel should not automatically shut a party out of the seat of justice where no irreparable prejudice is occasioned. Guided by Articles 50 and 159(2)(d) of the Constitution, the court found that the interests of justice would be better served by determining the dispute on its merits rather than on a procedural default.

p. 2

Legal principles established

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  • Mistakes of counsel should not automatically be used to shut out a party from the seat of justice, particularly where no irreparable prejudice is occasioned to the opposing party
  • Procedural rules serve an important purpose but should not be applied in a manner that defeats substantive justice

Court orders

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  1. 1.The interlocutory judgment entered in default together with all consequential orders is set aside
  2. 2.The Respondent is granted unconditional leave to file and serve its Statement of Response within fourteen (14) days from the date of the ruling
  3. 3.The Claimant is at liberty to file any reply, if necessary, within fourteen (14) days of service
  4. 4.The Respondent shall pay the Claimant throw away costs assessed at Kshs. 20,000 before the next date of court appearance
  5. 5.Mention date for pre-trial directions to be taken at the time of delivery of the ruling

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
Jurisdiction invoked
Original employment and labour relations jurisdiction; discretionary power to set aside interlocutory/default judgment guided by Articles 50 and 159(2)(d) of the Constitution

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 Union of Road Contractors and Civil Engineering Workers v China Railway No 7 Engineering Group (Employment and Labour Relations Cause E081 of 2024) [2025] KEELRC 3747 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3747/eng@2025-12-22

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