George Okono v Little Chef Holdings Limited [2019] KEELRC 1420 (KLR)
The bottom line
#A Kenyan court set aside an employment judgment won without the other side present, because the company was served incorrectly.
What this practically means
#Executive summary
#Key legal issues
#Proper service of originating process on a company under the E&LRC (Procedure) Rules 2016
Service on the cashier was improper because the Affidavit of Service did not show any attempt to serve the Secretary, Director or Principal Officer as required by Rule 12(1)(a)
The court accepted that receipt by the cashier could satisfy Rule 12(1)(b)(i) if the officers under Rule 12(1)(a) were unavailable, since the cashier's office is a conspicuous place at the registered office. However, the rules require the alternative mode only after an attempt at primary service has failed. The process-server's affidavit disclosed no attempt to trace the Secretary, Director or Principal Officer, nor any failure to do so, nor any explanation why their whereabouts were not asked.
Whether proceeding ex parte concluded the question of proper service
No - ex parte and formal proof orders are reversible and based on a preliminary view of notice, so the court could revisit the propriety of service
The Claimant argued that by proceeding with the ex-parte hearing the court had effectively ruled on the propriety of service. The court rejected this, holding that such orders are made on the court's preliminary view of the adequacy of notice, and that treating them as final would leave no room for revisiting ex-parte judgments and orders. The setting-aside jurisdiction therefore remained open.
Legal principles established
#- Alternative service under Rule 12(1)(b) is available only where service under Rule 12(1)(a) has been attempted and failed, and the Affidavit of Service must disclose that attempt and the reason for failure
- Orders for formal proof or ex-parte hearings are reversible and do not constitute a final ruling on the propriety of service
Court orders
#- 1.Ex-parte Judgment delivered on 16th June 2017 is set aside
- 2.The Respondent is granted unconditional leave to respond to the Claim
- 3.The draft Statement of Response filed on 18th August 2017 shall be deemed as duly filed and served, upon payment of requisite Court fees
- 4.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the E&LRC (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Okono v Little Chef Holdings Limited [2019] KEELRC 1420 (KLR)", Case Analysis (2019). Cause No 569 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1420/eng@2019-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.