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ELRCOtherNot stated in judgment· [2021] KEELRC 170 (KLR)

Ali Mwijaa Ali v Safari Petroleum Limited [2021] KEELRC 170 (KLR)

Employment and Labour Relations Court
17 December 2021
BOByram Ongaya
1,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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An employment claim worth over Kshs. 700,000 collapsed in Kenya's Employment Court simply because the summons were never served or renewed in time.

What this practically means

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Executive summary

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The claimant sued his alleged former employer claiming he was unfairly declared redundant on 08.10.2017 after refusing revised, reduced contractual terms. He claimed underpayment below the wage orders from 2015, unpaid house allowance under section 31 of the Employment Act, compensation for unfair termination under section 40, a month's pay in lieu of notice, untaken leave, a certificate of service and costs, totalling about Kshs. 704,165.00. The court, however, examined the procedural record first. The memorandum of summons issued on 28.05.2018 was valid for six months. The process server twice failed to effect service, and although affidavits in support of renewal were filed, no renewal application was ever made and no court order extending the summons existed; the deputy registrar's reissue of summons in July 2019 lacked the requisite order. The court found that the summons lapsed, were never extended and never served, that the order of 03.11.2021 directing formal proof and all consequential proceedings, including the ex-parte hearing of 08.12.2021 and judgment directions of 17.12.2021, were made on the misleading premise that service had occurred. The court also held the suit had abated due to inordinate delay, noting the claimant could no longer trace the respondent and the court must not act in vanity. On the merits, the employment relationship with the named respondent was not established: the appointment letters were by Al-Lely Petroleum Ltd and key referenced letters were not exhibited. The suit was determined as abated with no orders on costs.

Key legal issues

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01

Validity, service and renewal of summons

Holding

The summons issued on 28.05.2018 lapsed after six months; no application for renewal was filed, no court order for extension existed, and service was never effected. The suit therefore abated.

Reasoning

The court traced the procedural history: the process server twice failed to effect service, affidavits supporting renewal were filed but no renewal applications were ever made, and the deputy registrar reissued summons without the requisite court order. The court held the claimant was misled about service and took inordinate delay, observing the court 'must not act in vanity'. The suit, having no valid summons served, abated.

p. 2
02

Setting aside of ex-parte formal proof proceedings

Holding

The order of 03.11.2021 directing formal proof hearing and all consequential proceedings were made on the misleading fact that summons had been served, and are liable to be set aside.

Reasoning

Because no summons had ever been served, the court's direction that the respondent had failed to enter appearance was founded on a false premise. The ex-parte hearing of 08.12.2021 and the directions for judgment of 17.12.2021 flowed from that defect and could not stand, though the court's ultimate disposition was that the suit had abated.

p. 2
03

Establishment of the employment relationship with the named respondent

Holding

On a balance of probability, no employment relationship was established between the claimant and the named respondent.

Reasoning

The appointment letter of 02.01.2009 and probation completion letter of 29.12.2011 were issued by Al-Lely Petroleum Ltd, whose relationship with the named respondent was neither pleaded nor established. Further, the letters of 29.05.2017 and 15.07.2017 referred to in the change-of-terms and redundancy letters were not exhibited. Combined with the claimant's inability to trace the respondent, the claim could not be sustained.

p. 2

Legal principles established

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  • Summons in employment claims are valid in the first instance for six months and must be served or renewed by a court order before expiry; a suit where summons were never served lapses or abates.
  • Ex-parte proceedings obtained on the misleading premise that summons had been served are liable to be set aside.
  • A claimant who does not plead or prove the employment relationship with the named defendant, and cannot trace it, fails on a balance of probability.

Court orders

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  1. 1.The suit is determined as abated
  2. 2.No orders on costs

Authorities

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Legislation

  • Employment Actsection 31
  • Employment Actsection 40
  • Labour Institutions Act (Regulation of Wages) (General) (Amendment) OrderLegal Notice 117 of 2015
  • Labour Institutions Act (Regulation of Wages) (General) (Amendment) OrderLegal Notice No. 107 of 2017
  • Employment and Labour Relations Court (Procedure) RulesRule 11(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules

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, "Ali Mwijaa Ali v Safari Petroleum Limited [2021] KEELRC 170 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/170/eng@2021-12-17

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