Thomas Kimutai Biwott v Kenya Power & Lighting Co. Ltd [2017] KEELRC 2003 (KLR)
The bottom line
#A Kenyan court refused to undo a default judgment against an employer, ruling that serving its regional HR officer counted as proper service.
What this practically means
#Executive summary
#Key legal issues
#Proper service of process on a company
Service on the Respondent's Human Resource and Administration Officer, North Rift, met the letter and spirit of Rule 12 of the ELRC (Procedure) Rules, 2016.
Neither the ELRC Rules nor the Civil Procedure Rules define 'principal officer'. The Court turned to the Companies Act, 2015, which defines 'officer' to include any director, manager or secretary, and to Black's Law Dictionary, which defines an officer as one elected or appointed to manage daily operations. Since a Human Resource Officer handles daily human resource functions including discipline, such an officer in a regionally-organised entity qualifies as a statutory manager for service purposes.
Effect of failure to serve Notice of Entry of Judgment
The irregularity of not serving the Notice of Entry of Judgment could not excuse the Respondent's failure to follow up the Cause given the several other notices served and acknowledged.
The 10-day Notice of Entry of Judgment was admittedly not served, but the Respondent had also been served with and acknowledged a hearing notice (25 January 2017), the amended Memorandum of Claim (30 March 2017) and mention notices (7 December 2016 and 14 July 2017). In those circumstances the Respondent could not claim ignorance of the proceedings' progress.
Triable issues in the draft Response
The proposed Response raised no triable issues, consisting only of bare denials and putting the Claimant to strict proof.
Sections 41, 43 and 45 of the Employment Act, 2007 place burdens on employers which a Response must be structured to discharge. A Response consisting of bare denials without contextualised engagement with those statutory obligations discloses no defence worthy of trial, so leave to defend was refused.
Legal principles established
#- Whether a person served with court process qualifies as a principal/statutory officer is determined by the functions assigned to that person, and a Human Resource & Administration Officer of an entity with regional offices meets the statutory manager categorisation under the Companies Act, 2015.
Court orders
#- 1.The application dated 17 October 2017 dismissed with costs to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016; review/set aside application under the Court's rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Kimutai Biwott v Kenya Power & Lighting Co. Ltd [2017] KEELRC 2003 (KLR)", Case Analysis (2017). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/2003/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.