Babs Security Services Ltd. v Mwarua Yawa Nzao and 19 Others
The bottom line
#Kenya's Court of Appeal ruled that default judgments entered without properly serving a company's top officers must be set aside as a matter of right.
What this practically means
#Executive summary
#Key legal issues
#Appellate interference with exercise of discretion
The Court reiterated that it will not interfere with a lower court's exercise of discretion unless the judge misdirected herself or was clearly wrong and occasioned injustice; here the Judge erred because the service was irregular.
Adopting Coffee Board of Kenya vs Thika Coffee Mills, the Court set the classic threshold for interfering with discretion: misdirection, wrong decision, or a manifestly wrong exercise occasioning injustice. The Court found the Judge misdirected herself by treating service on the receptionist as valid despite the prescribed order of service under Rule 12 not having been followed, thus justifying interference.
Regularity of service on a corporate body
Service on the appellant's receptionist was irregular because there was no evidence that attempts to serve principal officers were first made as prescribed by Rule 12(1)(a) of the ELRC Rules.
Rule 12(1)(a) prescribes service on the secretary, director or other principal officer; only where that proves impossible may the alternative modes in Rule 12(1)(b) be used. Neither the process server nor the respondents deponed to any attempt to serve the principal officers. Citing Total Kenya Ltd vs Supa Haulier, the Court held that the affidavit of service must justify the mode adopted; absent such deposition, service on the receptionist was contrary to the prescribed procedure and irregular.
Consequence of an irregular default judgment
An exparte judgment founded on irregular service is an irregular default judgment which must be set aside as of right, without considering triable issues or delay.
Relying on this Court's decision in James Kanyiita Nderitu vs Marios Philotas Ghikas, the Court drew the distinction between regular and irregular default judgments. Because the appellant was condemned without proper notice of the suit, the judgment ought to have been set aside ex debito justitiae as a matter of right, without venturing into whether the draft defence raised triable issues or whether there was inordinate delay.
Right to be heard and purpose of service
Service of summons is integral to the right to be heard and grounded in natural justice - no one should be condemned unheard.
The Court traced the rationale of service to the natural justice principle that a party must have notice of proceedings affecting it before an adverse decision is made, citing the Supreme Court of India in Sangram Singh vs Election Tribunal, Koteh. Irregular service therefore strikes at the root of fair hearing and cannot be dismissed as a mere procedural lapse.
Legal principles established
#- Service on a corporate body must first be attempted on its principal officers under Rule 12(1)(a) of the ELRC Rules, and where that proves difficult, service may proceed only through the alternative means in Rule 12(1)(b); failure to show attempts on principal officers renders service on a receptionist irregular.
- An affidavit of service must depone to the vain attempts made to effect service on the officers of a corporation before resorting to another mode of service.
- A default judgment entered against a defendant who has not been properly served is an irregular default judgment and must be set aside as of right (ex debito justitiae), without inquiry into triable issues or delay.
Court orders
#- 1.Exparte judgment dated 2nd March 2018 in E.L.R. Cause No. 657 of 2016 set aside in its entirety
- 2.Appellant granted leave to file its statement of defence within 7 days of the judgment
- 3.Appellant awarded costs of both the appeal and the application filed in the ELRC on 7th February 2018
- On appeal from
- Employment and Labour Relations Court
- E.L.R. Cause No. 657 of 2016
- Jurisdiction invoked
- First appeal from the Employment and Labour Relations Court (appellate jurisdiction over the trial court's discretionary ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Virginia Susan Wangui & 4 others v Ncba Bank Kenya Plc[2026] KECA 843 (KLR)30 Apr 2026
- Kenya Plantation & Agricultural Workers Union v Solio Ranch Limited (Cause E030 of 2024) [2025] KEELRC 1850 (KLR)[2025] KEELRC 1850 (KLR)24 Jun 2025followed
Cite this brief
#Cite this brief
Caselaw, "Babs Security Services Ltd. v Mwarua Yawa Nzao and 19 Others", Case Analysis (2019). Civil Appeal No. 137 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/782/eng@2019-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.