Moses Ojanji Khasaya v Wasso Security Services Limited [2014] KEELRC 1158 (KLR)
The bottom line
#A Kenyan employment court set aside a default judgment because ignoring court documents isn't acceptable, but made the employer pay costs for skipping the case.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of service on a corporate body
The court found the respondent was properly served through its officers/employees and chose not to attend court
Various officers of the respondent were cited as having been served; notwithstanding defects in the affidavits of service, there was no denial that those officers were employees of the respondent. The court found the respondent was aware of the proceedings and deliberately failed to enter appearance or defence, so the presumption of service stood and the respondent was properly served.
Defects in the affidavits of service
The missing court stamp was the court's error and the differing signatures raised genuine concern, but these did not displace the finding of proper service
The affidavit of service was paid for on 22nd March 2012 before the alleged service date of 30th January 2013, and the signatures of the process server on the two affidavits differed remarkably even without expert evidence. The court held these were irregularities of the court's officer and the claimant's records, not grounds to find no service, given the respondent's own inaction.
Setting aside the ex parte judgment
In the interests of justice and peaceful industrial relations, the judgment was set aside notwithstanding proper service, on conditions
The court invoked its powers under section 12 of the Industrial Court Act and its duty to ensure peaceful industrial relations and give parties a fair chance to be heard. It set aside the judgment conditional on the respondent paying costs, filing a defence and a hearing date being allocated.
Defectiveness of the application
The court noted the mismatch between the orders sought and the supporting provisions/affidavit
The application was brought under section 12(3) of the Industrial Court Act and Rules 16(1) and 32(1)(b), yet the substantive orders - stay, cross-examination of the process server and review - were not supported by the cited provisions, and the orders sought in the application and the affidavit deponed to two different issues. The court nonetheless reached the merits in the interests of justice.
Legal principles established
#- A party served with summons who opts not to enter appearance or defence cannot rely on defects in the claimant's or the court's records to escape an ex parte judgment
- Defects in court records occasioned by the court's own officers cannot be visited upon the parties
Court orders
#- 1.Judgment entered on 24th September 2013 set aside
- 2.Respondent to pay the claimant all costs incurred to date within fourteen (14) days
- 3.Respondent to file their defence within seven (7) days
- 4.Claimant to have a right of reply within seven (7) days upon service
- 5.A hearing date to be allocated in court
- 6.Costs of the application awarded to the claimant
- Jurisdiction invoked
- Section 12(3) of the Industrial Court Act, Rules 16(1), 32(1)(b) and (e) of the Industrial Court Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Ojanji Khasaya v Wasso Security Services Limited [2014] KEELRC 1158 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1158/eng@2014-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.