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ELRCDismissedNot stated in judgment· [2020] KEELRC 1134 (KLR)

Moses Wasike Munialo v China National Aerotechnology International Engineering (Cause 105 of 2017) [2020] KEELRC 1134 (KLR)

Employment and Labour Relations Court
13 May 2020
MNMathews N. Nduma
1,664 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that serving court papers on a company's HR Manager counts as valid service, and ignored technical objections raised after months of inaction.

What this practically means

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Executive summary

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The respondent/applicant, a corporate employer, filed two notice of motion applications dated 1st February 2019 and 6th February 2019 seeking to set aside a judgment delivered on 27th July 2018 and its decree, to lift the attachment and intended sale of motor vehicle KCM 465C, and for costs. It argued that the summons and memorandum of claim were never properly served because they were received by the Human Resource Manager rather than a director or principal officer, that it only became aware of the suit upon proclamation of its goods, that it had a good defence, and that the attachment breached the 7-day notice period. The claimant/respondent opposed, showing the process server served the HR Manager at Namwela Trading Centre on 30th January 2018 with a filed affidavit of service, that the applicant took no step to defend until after proclamation, and that attachment on 1st February 2019 came eight clear days after proclamation on 25th January 2019. The court held that under Rule 12(1) of the ELRC (Procedure) Rules 2016, service on a corporate body may be effected on any principal officer, and in employment matters the HR Manager is the most suited recipient of service. It found the applicant deliberately delayed until proclamation before challenging service, and followed Scooby Enterprises Limited v Kisii County Assembly Service Board in refusing to exercise its discretion to set aside the judgment. On the second application, the court found the attachment was levied eight clear days after proclamation and was both procedural and lawful. Both applications were dismissed with costs to the claimant/respondent. The ruling was delivered online on 13th May 2020 pursuant to COVID-19 directions.

Key legal issues

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01

Proper service on a corporate body

Holding

Service on the Human Resource Manager was valid under Rule 12(1) of the ELRC (Procedure) Rules 2016 as service on a principal officer

Reasoning

Rule 12(1) permits service on the secretary, director or any other principal officer. The HR Manager signed at the foot of the summons, and in employment matters no other officer is better suited to receive service. The assertion that only a director could be served had no basis in law or fact, and no cross-examination of the process server was sought.

p. 2
02

Whether the judgment should be set aside

Holding

No plausible or sufficient reason to set aside; the applicant deliberately failed to defend after receiving summons

Reasoning

The applicant was served on 21st December 2017 but took no step to defend until its goods were proclaimed and it filed the application on 1st February 2019, more than seven months after judgment. The court found the delay deliberate and the service objections mere technicalities, following Scooby Enterprises Limited v Kisii County Assembly Service Board.

p. 2
03

Legality of the attachment and intended sale

Holding

The attachment of motor vehicle KCM 465C was procedural and lawful, proclamation having been served 8 clear days before attachment

Reasoning

Documentary evidence and the parties' depositions showed the proclamation notice was served on 25th January 2019 and attachment was levied on 1st February 2019, being the eighth day, exceeding the required 7-day notice period. The applicant's assertion to the contrary was false.

p. 2

Legal principles established

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  • Service of employment-related court process on a company's Human Resource Manager is proper and lawful service on the corporate body as a principal officer
  • An applicant who deliberately delays taking steps in a suit cannot invoke technicalities on service to have a judgment set aside

Court orders

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  1. 1.The application dated 1st February 2019 is dismissed
  2. 2.The application dated 6th February 2019 is dismissed
  3. 3.Costs of both applications to the claimant/respondent
  4. 4.The attachment of motor vehicle registration number KCM 465C is held procedural and lawful

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 5 rule 3(a) and (b); Order 21 rule 1
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 12(1)
  • Civil Procedure Act (chapter 21 of the Laws of Kenya)Section 18
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (1)

  • Scooby Enterprises Limited vs Kisii County Assembly Service Board
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules 2016, Rule 12(1); Civil Procedure Act (chapter 21), Section 18

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 Wasike Munialo v China National Aerotechnology International Engineering (Cause 105 of 2017) [2020] KEELRC 1134 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1134/eng@2020-05-13

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