Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition (Employment and Labour Relations Court, Nairobi)· [2018] KEELRC 1203 (KLR)

Winfred Mwongela Nzavi & another v Winfred Mwongela Nzavi & another [2018] KEELRC 1203 (KLR)

Employment and Labour Relations Court
20 April 2018
MMM. Mbaru
2,041 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that leaving court documents with a security guard counts as proper service on a company, so Lufthansa Cargo could not undo earlier orders.

What this practically means

#

Executive summary

#
This is a ruling by M. Mbaru, J of the Employment and Labour Relations Court at Nairobi on a Notice of Motion dated 11th July 2017 by the 2nd respondent, Lufthansa Cargo AG, seeking to set aside or vary ex-parte orders issued on 23rd June 2017 in the petitioners' application dated 15th June 2017. The 2nd respondent argued that service was irregular because the process server, Jacob Mulanda Okwemba, left documents with a security guard rather than serving a principal officer, that the ex-parte orders were therefore procured without proof of service and without a fair hearing, and that the petitioners' employment claims lay only against the 1st respondent with whom alone they had privity. The petitioners, through the affidavit of Obadiah Mulinge Ndambuki, averred they were employed by the 1st respondent in 2006/2007, transferred to work for the 2nd respondent in 2011, and faced redundancy following termination of the ground handling agreement between the respondents; service was effected at the gate at 4.20pm after the guard accepted documents. The court framed three issues: propriety of service, existence of an employment relationship with the 2nd respondent, and whether to set aside the orders of 23rd June 2017. Applying Rule 12 of the ELRC (Procedure) Rules, 2016, the court held service at the registered offices was proper, the guard should have declined service or granted access, and the 2nd respondent's non-attendance on 23rd June 2017 was unexplained. The employment question was held to be one of fact for a full hearing. The application was declined, with directions to exchange responses, allocate an urgent hearing date, and costs in the petition.

Key legal issues

#
01

Properness of service on a corporate body

Holding

Service by leaving the pleadings with the security guard at the 2nd respondent's offices was proper and in compliance with the court's directions

Reasoning

Rule 12 of the ELRC (Procedure) Rules, 2016 permits service on a corporate body through its secretary, director or principal officer, or alternatively by leaving pleadings at a conspicuous place at the registered office or place of business. The process server was denied access and left documents with the guard at 4.20pm on the day service was directed. The guard ought to have declined service or granted access, and no affidavit explained what became of the documents. Non-attendance on 23rd June 2017 was unexplained.

p. 3
02

Whether an employment relationship existed between the petitioners and the 2nd respondent

Holding

This is a question of fact that cannot be determined at the interlocutory stage and must be resolved at the full hearing of the petition

Reasoning

The 2nd respondent asserted the petitioners remained employees of the 1st respondent with no secondment; the petitioners averred they were transferred in 2011 and trained locally and abroad. These averments are vehemently opposed. The court found that deciding the employment question then would deny the petitioners a fair chance to argue the petition on its merits and deprive the court of relevant material for final orders.

p. 3

Legal principles established

#
  • Service on a body corporate may be effected through its officers or by leaving pleadings at a conspicuous place at the registered office or place of business under Rule 12 of the ELRC (Procedure) Rules, 2016
  • A security guard who accepts service at an employer's premises ought to have declined service or allowed the process server access; where no evidence shows what became of documents accepted, service is deemed proper
  • Whether an employment relationship arose by transfer, secondment or agreement is a question of fact to be interrogated at a full hearing, not on an interlocutory application

Court orders

#
  1. 1.Application dated 11th July, 2017 is declined
  2. 2.Parties to exchange their responses to ensure pleadings close
  3. 3.A hearing date for the main Petition to be allocated on priority
  4. 4.Costs in the petition
Jurisdiction invoked
Section 12(3) and 16 of the Employment and Labour Relations Court Act; Rule 17(7) and Rule 12 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Winfred Mwongela Nzavi & another v Winfred Mwongela Nzavi & another [2018] KEELRC 1203 (KLR)", Case Analysis (2018). Petition (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1203/eng@2018-04-20

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