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ELRCDismissedApplication dated 3rd May, 2021· [2021] KEELRC 700 (KLR)

Peter Mucha Gachoka v Protocol Solutions Limited [2021] KEELRC 700 (KLR)

Employment and Labour Relations Court
14 October 2021
1,952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A company that was properly served and participated in its employment case cannot escape the judgment years later by blaming internal management disputes.

What this practically means

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Executive summary

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The respondent, Protocol Solutions Limited, through its director Tony Keter, brought an application dated 3rd May 2021 seeking a stay of execution, suspension of a Notice to Show Cause dated 31st March 2021, leave to file a Notice of Appeal out of time, and in the alternative, suspension, review or setting aside of the judgment dated 30th January 2017 and a retrial. Keter averred that he was unaware of the proceedings, having been a resident of South Africa, that summons were never served on him, and that the advocates who acted for the company had no instructions from him and no board resolution authorised the appearance. The claimant opposed, asserting that summons were served on 10th September 2014, appearance and a response were filed, the matter was heard with the participation of director Job Maxwell Ochieng through an advocate, and the application was solely aimed at delaying execution. The court applied Rules 11 and 12 of the Industrial Court (Procedure) Rules, 2011 on service on corporate bodies, found returns of service on record, and held that questions of a director's authority or advocate's instructions are internal governance matters outside its jurisdiction. The court found the judgment was not ex parte or interlocutory since the respondent was served and participated throughout, refused the extension of time and review for unexplained delay, and applying Mary Wangari Kiarie v Safaricom (K) Limited, found the application to be an abuse of court process. The application was dismissed with costs to the claimant.

Key legal issues

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01

Adequacy of service on a corporate respondent

Holding

Service on 10th September, 2014 was properly effected under Rule 12 of the Industrial Court (Procedure) Rules, 2011, with returns of service on record

Reasoning

The court applied Rule 12 permitting service on a director or principal officer or alternatively at the registered office. There were returns confirming service on 10th September 2014 with a stamp and receipt. Ketter's claim that service required prior company resolution or his personal authority was rejected as an internal governance matter irrelevant to the conduct of proceedings.

p. 2
02

Authority of advocates to act for a company

Holding

Any want of authority of the advocates was an internal administrative matter for the company, not a ground to set aside the judgment

Reasoning

The court held that even if advocates attended without a board resolution or Ketter's consent, such irregularity is for the company to address in an appropriate forum. The claimant cannot be visited with internal governance failures, and the change of advocates remains an option open to the company which the court cannot regulate.

p. 3
03

Setting aside or staying judgment

Holding

The judgment was not ex parte or interlocutory; the respondent having been served and having participated, there was no basis to set it aside

Reasoning

The respondent was served, entered appearance, filed a response, and its director Job Maxwell Ochieng testified through an advocate. The judgment of 30th January 2017 was therefore not ex parte. The matter had progressed to execution, and the Notice to Show Cause was procedural and regular, issued after advertising to ensure the directors' attendance.

p. 3
04

Review and extension of time

Holding

Review ought to have been sought before execution commenced; the delay was unexplained and internal company matters are not a legitimate ground for review

Reasoning

The court found that any application for review or variation should have been made without delay before execution commenced, which was at an advanced stage. Ketter's residence abroad and belated registration as a director in 2018 did not explain the delay, and lack of disclosure to him was an internal matter of the respondent.

p. 3
05

Abuse of court process

Holding

The application demonstrated abuse of court process and was dismissed with costs

Reasoning

The court found no material justifying the application, holding that it demonstrated abuse of process, adopting the definition in Mary Wangari Kiarie v Safaricom (K) Limited of a proceeding wanting in bona fides and frivolous, vexatious or oppressive. The claimant had submitted the application was meant only to delay execution.

p. 3

Legal principles established

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  • Service on a corporate body under Rule 12 of the Industrial Court (Procedure) Rules, 2011 is effected on the secretary, director or principal officer, or alternatively at the registered office or by registered post/courier
  • Internal governance requirements concerning a director's authority to instruct advocates are separate from the conduct of proceedings before the court and cannot defeat properly effected service
  • The court will not inquire into whether advocates had a director's consent or a board resolution to represent a company; that is a matter for other forums
  • A proceeding wanting in bona fides, frivolous, vexatious or oppressive constitutes abuse of court process

Court orders

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  1. 1.The application dated 3rd May, 2021 is dismissed with costs to the claimant
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over the cause and execution proceedings (not expressly framed; applicable rules cited were the Industrial Court (Procedure) Rules, 2011)

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, "Peter Mucha Gachoka v Protocol Solutions Limited [2021] KEELRC 700 (KLR)", Case Analysis (2021). Application dated 3rd May, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/700/eng@2021-10-14

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