Zois (EPZ) Limited v Paul Mzee Malonza [2021] KEELRC 388 (KLR)
- Court
- Employment & Labour Relations Court
- Case number
- 388
- Citation
- [2021] KEELRC 388 (KLR)
The appeal is allowed, and the learned Senior Resident Magistrate's ruling and order dated 26.07.2011 are set aside. The appellant's notice of motion dated 28.03.2011 is allowed, and the respondent's suit is struck out and dismissed. Each party will bear their own costs.
Facts
The respondent filed SRMCC No. 540 of 2006 against the appellant for an injury claim. The summons to enter appearance were issued, but the appellant did not file a defence. The respondent applied for an interlocutory judgment, which was granted. The appellant then filed an urgent application to set aside the judgment and dismiss the suit, which was allowed with a consent order to file a defence.
Issues
- The learned trial Magistrate erred in law and in fact by dismissing the defendant's application
- The learned trial Magistrate failed to appreciate the legal provisions under which the defendant's application was premised
- The learned trial Magistrate failed to consider the significance of the various facts that emerged in the matter
Reasoning
The Court finds that the appellant's application to set aside the judgment and dismiss the suit was allowed with a consent order to file a defence, but the suit had already abated due to the lapse of the summons. The Court also finds that the trial court erred in failing to consider the applicable provisions of Order 5 Rule 2(7) of the Civil Procedure Rules.
Outcome
Appeal allowed
Orders
- The learned Senior Resident Magistrate’s ruling and order dated 26.07.2011 and all processes flowing therefrom are hereby set aside
- The appellant’s notice of motion dated 28.03.2011 in the Senior Resident Magistrate’s Court Civil Case No. 540 of 2006 at Mombasa is hereby allowed with orders that the respondent’s suit therein is struck out and the suit dismissed
Remedies
- Each party will bear their own costs of the suit below and the appeal
Authorities cited
Legislation (2)
- Civil Procedure Act
- Civil Procedure Rules
Loading judgment…