Joseph Macharia Mbugua v M/S Young Club 7 & Restaurant [2014] KEELRC 1332 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether service of summons on Mr. Bakari was proper service on the Respondent
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
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.
Whether service of the hearing notice for 17th June 2013 was proper
Service was proper; the Respondent did not deny a manager accepted service, and failed to apply to cross-examine the process server
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.
Whether the draft Statement of Response raised triable issues justifying setting aside the ex-parte judgment
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
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.
Legal principles established
#- 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
#- 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.Costs of the application awarded to the Claimant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.