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ELRCDismissedNot stated in judgment (Industrial Court cause; judgment entered 17th January 2014)· [2014] KEELRC 1332 (KLR)

Joseph Macharia Mbugua v M/S Young Club 7 & Restaurant [2014] KEELRC 1332 (KLR)

Industrial Court of Kenya
10 October 2014
2,557 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Respondent, Francis Kirubi Gichanja trading as Young Club 7 & Restaurant, moved the Industrial Court by Notice of Motion dated 19th March 2014 seeking stay of execution of the ex-parte judgment of 17th January 2014, which had awarded the Claimant Kshs.304,847 for unfair termination, notice, salary arrears, underpayments and leave, and further seeking to set aside that judgment. The Respondent contended it was never properly served with summons or hearing notices, that the person served, Mr. Bakari, was a supervisor without authority to accept service who had left employment in December 2011, that the Respondent was wrongly sued as a limited company when it was a business name, and that it had a good defence which would be crippled by execution. The Claimant opposed, relying on affidavits of service by a process server showing service of summons on Mr. Bakari and of hearing notices on the Respondent's manager, and offered the process server for cross-examination. The court, per Lady Justice Maureen Onyango, applied Order 12 Rule 7 of the Civil Procedure Rules and the principles in Kimani Kigano v Jimba Credit Corporation and Remco Ltd v Mistry Javda Parbat. It held that under the Employment Act's definition of employer, service on Mr. Bakari as manager or foreman was proper service on the firm; that service of the hearing notice was also proper since the Respondent did not deny a manager accepted service and did not apply to cross-examine the process server; and that the draft statement of response was a mere denial raising no triable issues, with no application for leave to respond out of time. The application was dismissed with costs to the Claimant on 10th October 2014.

Key legal issues

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01

Whether service of summons on Mr. Bakari was proper service on the Respondent

Holding

Service was proper; Mr. Bakari qualified as an employer's agent, foreman or manager under the Employment Act, and the Respondent was properly sued as a firm

Reasoning

The court applied the statutory definition of employer under the Employment Act, which includes agents, foremen, managers and factors. Mr. Bakari, being in charge of the business premises, fell within that definition. The Respondent did not contest that service was effected on Bakari, only his authority, which the definition resolved. The business name being sued as a firm was also competent.

p. 4
02

Whether service of the hearing notice for 17th June 2013 was proper

Holding

Service was proper; the Respondent did not deny a manager accepted service, and failed to apply to cross-examine the process server

Reasoning

The affidavit of service showed the manager accepted service after consulting his boss. The Respondent only complained that the manager's name was undisclosed, did not deny service occurred, gave no proof Bakari had left employment, and did not take up the offered cross-examination of the process server. The court therefore accepted the affidavit of service as proof of proper service.

p. 4
03

Whether the draft Statement of Response raised triable issues justifying setting aside the ex-parte judgment

Holding

It did not; the draft response was a mere denial and the Respondent had not applied for leave to file a response out of time

Reasoning

The court set out Rule 13(2) of the Industrial Court (Procedure) Rules, 2010 on the required contents of a statement of response, and found the draft defence to be a bare denial of the claim without any factual or legal grounds capable of raising triable issues. The Respondent had also not applied for leave to file the response out of time, which further undermined the application.

p. 5

Legal principles established

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  • Where there is no proper or any service of summons, the resulting default judgment is irregular and must be set aside as a matter of right; where service is regular, the court has an unfettered discretion to set aside on such terms as are just
  • Under the Employment Act, an employer includes the agent, foreman, manager or factor of the person, firm or company employing an individual, so service on such a person is service on the employer
  • Where a party fails to apply to cross-examine a process server whose affidavit of service is challenged, the court will scrutinise the affidavit of service against the evidence in the parties' affidavits

Court orders

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  1. 1.Dismissal of the Respondent's Notice of Motion dated 19th March 2014 seeking stay of execution and setting aside of the ex-parte judgment
  2. 2.Costs of the application awarded to the Claimant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 12 Rule 7 as read with rule 2
  • Civil Procedure Rules, 2010Order 14A Rule 10
  • Civil Procedure Rules (former)Order IXA rule 10
  • Employment ActDefinition of employer
  • Industrial Court (Procedure) Rules, 2010Rule 13(2)

Cases cited (6)

  • John Kamau Icharia v Paul Njiru & Another
    Nairobi HCC No. 1774 of 1994
  • Tree Shade Motors Limited v D.T. Dobie & Company (K) Limited & Another
    Civil Appeal No. 38 of 1998
  • Maina v Muriuki
    (1984) KLR 407
  • Omayi Okumu Kasiaka & 2 others v Moses Okware Opari & Another
    (2013) eKLR
  • Kimani Kigano and Company Advocates v Jimba Credit Corporation Limited
  • Remco Ltd v Mistry Javda Parbat & Co. Ltd & 2 others
    Nairobi HCCC No. 171 of 2001
Jurisdiction invoked
Industrial Court jurisdiction under the Industrial Court Act read with Industrial Court (Procedure) Rules, 2010 (matter concerns unfair termination and underpayment claims; application under Order 12 Rule 7 Civil Procedure Rules 2010 as read with rule 2)

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, "Joseph Macharia Mbugua v M/S Young Club 7 & Restaurant [2014] KEELRC 1332 (KLR)", Case Analysis (2014). Not stated in judgment (Industrial Court cause; judgment entered 17th January 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1332/eng@2014-10-10

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