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ELRCDismissedNot stated in the judgment· [2021] KEELRC 20 (KLR)

George Otieno v Kenya Kazi Services Limited (Cause E6592 of 2020) (Employment and Labour) [2021] KEELRC 20 (KLR)

Employment and Labour Relations Court
20 December 2021
791 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant filed an application dated 17th October, 2021 seeking to strike out the respondent's response dated 7th September, 2021 on the ground that it was filed out of time and without leave of court, and that the suit should proceed to formal proof. The claimant's supporting affidavit of Fredrick Ochwa deponed that the respondent was served on 4th January, 2021, entered appearance on 24th February, 2021, but only filed a response on 21st September, 2021, over seven months later. The respondent opposed through grounds of opposition, contending that no summons to enter appearance were served as required under Order 5 Rule 1 of the Civil Procedure Rules; only a Notice of Appointment of Advocate was filed on 3rd March, 2021, and the response was filed to expedite the hearing. The court applied the Employment and Labour Relations Court (Procedure) Rules, 2016, particularly Rules 4, 11, 13 and 15(3), which require summons in Form 2 of the First Schedule to be issued and served with the statement of claim. On perusal of the file, the court found that no summonses were extracted or signed by an officer of the court for service. Consequently there was nothing for the respondent to enter appearance upon, and its attendance by notice of appointment of advocate was proper. The response filed to expedite the hearing was in good standing. The application dated 17th October, 2021 was dismissed, the response was declared properly on record, the parties were given 30 days to close pleadings, exchange statements and documents and take a hearing date, and the respondent was awarded costs of the application.

Key legal issues

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01

Service of summons under Rule 11 of the ELRC (Procedure) Rules, 2016

Holding

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

Reasoning

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.

p. 2
02

Whether the response should be struck out as filed out of time and without leave

Holding

The application was dismissed; the response was properly on record because no summons had been served

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 17th October, 2021 is dismissed
  2. 2.The response dated 7th September, 2021 is properly on record
  3. 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. 4.The respondent is awarded costs of this application
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016

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, "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.