George Otieno v Kenya Kazi Services Limited (Cause E6592 of 2020) (Employment and Labour) [2021] KEELRC 20 (KLR)
The bottom line
#The Employment Court dismissed an attempt to strike out a late response because the claimant never properly served summons in the first place.
What this practically means
#Executive summary
#Key legal issues
#Service of summons under Rule 11 of the ELRC (Procedure) Rules, 2016
Summons must be extracted, signed by an officer of the court and served together with the statement of claim; none were extracted or served here
The court set out Rule 11 requiring summons in Form 2 of the First Schedule to be issued and served with the statement of claim. On perusal of the file no summonses were extracted or signed by an officer of the court for service. The affidavit of service by Fredrick Ochwa could not cure the absence of issued summons, so there was no valid service obliging the respondent to enter appearance or file a response within 21 days.
Whether the response should be struck out as filed out of time and without leave
The application was dismissed; the response was properly on record because no summons had been served
Since summons were never extracted or served, the time for filing a response never began to run against the respondent. The respondent's attendance through a Notice of Appointment of Advocate dated 25th February, 2021 was proper in the circumstances, and its response filed to expedite the hearing was in good standing. There was thus no basis for striking out the response or directing formal proof.
Legal principles established
#- A respondent can only be required to enter appearance and file a response upon proper service of summons issued in the prescribed form; a notice of appointment of advocate is not a memorandum of appearance in response to service
- Where no summons is served, a response filed to expedite hearing is properly on record
Court orders
#- 1.The application dated 17th October, 2021 is dismissed
- 2.The response dated 7th September, 2021 is properly on record
- 3.Parties are allowed 30 days to close pleadings with exchange of all statements and documents to be used at the hearing and to take a hearing date at the registry
- 4.The respondent is awarded costs of this application
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Otieno v Kenya Kazi Services Limited (Cause E6592 of 2020) (Employment and Labour) [2021] KEELRC 20 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/20/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.