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ELRCDismissedNot stated in the extract· [2018] KEELRC 1474 (KLR)

Moses Oloo Miseh v Migori County Assembly Service Board [2018] KEELRC 1474 (KLR)

Employment and Labour Relations Court
19 July 2018
MNMathews N. Nduma
800 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to undo a judgment against Migori County's Assembly Service Board because the Board misled the court about being served.

What this practically means

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Executive summary

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The County Assembly Service Board, Migori County, applied to set aside a judgment delivered on 22nd February 2018 in an employment claim by Moses Oloo Miseh, contending that no summons or memorandum of claim were served on it, that service had been effected on the Migori County Assembly rather than the Board, that the suit was filed before the Board was properly constituted following the 2017 general elections, that it had an arguable defence, and that the application was brought without undue delay. The claimant opposed with a replying affidavit showing two instances of service: service by G4S courier on 23rd August 2017 and service by process server Vitalis Onyango Akuku on 17th October 2017 upon the clerk to the Assembly, who under section 12(4) of the County Government Act is the secretary of the Board. The claimant argued the reference to 'Migori County Assembly' in the judgment was a mere typographical error. The court found the applicant's assertions factually incorrect: the affidavit of service established that the clerk, being the secretary of the Board, was served, and the process server was never challenged. Applying the clean hands principle, the court held that an applicant seeking equity must be candid, and refused to exercise its discretion in favour of a party exploiting a typographical error. It was not satisfied the claimant would not suffer injustice if the judgment were set aside. The application was dismissed with costs, and the typographical error was corrected to reflect the Respondent as the Migori County Assembly Service Board.

Key legal issues

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01

Whether service of summons was effected on the applicant

Holding

Service was properly effected on the clerk to the County Assembly, who is also the secretary of the County Assembly Service Board; the applicant's assertion that only the County Assembly was served was factually incorrect.

Reasoning

The affidavit of service showed the clerk to the Assembly, who is the secretary of the Assembly Service Board, was served. The process server was never challenged on this by the applicant. The reference in the judgment to 'Migori County Assembly' was a typographical error, which the court corrected forthwith.

p. 2
02

Whether the discretion to set aside judgment should be exercised in favour of the applicant

Holding

The discretion was refused because the applicant lacked clean hands and failed to show the claimant would not suffer injustice; the respondent had simply failed to defend without justifiable reason.

Reasoning

Although the court leans towards setting aside judgments to uphold fair hearing, the application must be brought in good faith with all facts disclosed. Here the applicant exploited a clerical error and failed to demonstrate that setting aside the judgment would not cause injustice to the claimant.

p. 2

Legal principles established

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  • An applicant seeking the court's equitable discretion to set aside a judgment must be candid and place all facts before the court (clean hands).

Court orders

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  1. 1.The application to set aside the judgment is dismissed with costs
  2. 2.The typographical error on the judgment is corrected to reflect the Respondent as 'Migori County Assembly Service Board' as reflected in the pleadings

Authorities

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Legislation

  • County Government Act No. 17 of 2012section 12(4)
Jurisdiction invoked
Inherent discretion of the court to set aside its own judgment; reference to section 12(4) of the County Government Act No. 17 of 2012

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, "Moses Oloo Miseh v Migori County Assembly Service Board [2018] KEELRC 1474 (KLR)", Case Analysis (2018). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1474/eng@2018-07-19

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