Mabel Kibore v National Oil Corporation Limited [2021] KEELRC 1344 (KLR)
The bottom line
#A Kenyan employment court confirmed that email service of court documents is valid, and dismissed an employer's attempt to overturn orders served that way.
What this practically means
#Executive summary
#Key legal issues
#Whether service by electronic mail constitutes valid service
Yes - service by electronic mail is valid and now permitted; the Respondent, having admitted receipt of the documents, cannot claim prejudice merely because the format was unclear, having failed to seek clearer copies
The Court aligned itself with the progressive amendment to the Civil Procedure Rules (Order 5 Rule 22B) recognising electronic service in the wake of Covid-19. The Respondent admitted receiving the documents by email but complained of format. The Court held that a party aware of service must be diligent - by seeking clearer copies from the claimant, the Court, or the online portal - and failure to do so precludes any claim of prejudice. Personal service on the Respondent's CEO was also not denied by any officer swearing an affidavit.
Whether the ex-parte orders of 9th December 2020 should be set aside
No - the Respondent failed to demonstrate entitlement to the discretionary relief; the application was misguided and an attempt to circumvent existing orders
Applying the settled principles for setting aside ex-parte orders (discretion exercised justly to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party deliberately obstructing or delaying justice), the Court found no inadvertence or excusable mistake. Instead, the Claimant demonstrated that the Respondent had not complied with orders dating back to 8th November 2017. A party seeking equity must come with clean hands; the Respondent's own contempt of prior orders weighed against the exercise of discretion in its favour.
Legal principles established
#- Service by electronic mail is now permitted, having been accommodated in the new normal occasioned by the Covid-19 pandemic, and is reflected in Order 5 Rule 22B of the Civil Procedure Rules
- Diligence is expected of every party before the Court, not only the party moving the Court; a party aware of proceedings who does not seek clearer copies or verification cannot later claim prejudice
- The discretion to set aside ex-parte orders is exercised when inadvertence, accident, excusable mistake or error occur, and must be exercised judicially, not arbitrarily or idiosyncratically
Court orders
#- 1.The Respondent's notice of motion application dated 21st December 2020 was dismissed with costs to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011; Employment and Labour Relations Court (Procedure) Rules, 2016 (Rule 32(2)); Civil Procedure Act and Rules on execution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mabel Kibore v National Oil Corporation Limited [2021] KEELRC 1344 (KLR)", Case Analysis (2021). Cause No 1993 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1344/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.