Evans Ooko Nyamota v Beemtho Service Ltd [2021] KEELRC 1792 (KLR)
The bottom line
#A Kenyan employment court refused to overturn a judgment against a company that ignored court papers, ruling proper service had been made and the late objection was an abuse of process.
What this practically means
#Executive summary
#Key legal issues
#Validity of service on a corporation under Order 5 Rule 3
Service was regular: the process server served 'Thomas' and 'Josphat', a supervisor, at the corporation, which sufficed under Order 5 Rule 3.
The court construed Order 5 Rule 3, holding that the rule specifies who may be served on a corporation but imposes no requirement that the process server explain how he identified the person served. The process server's statement that he served 'Thomas' and 'Josphat' who introduced himself as supervisor adequately showed how the server knew the person served, who was a principal officer. Subsequent service of hearing, mention and taxation notices confirmed the respondent's awareness of the suit.
Whether the affidavit of service was fatally defective
The defects alleged (time of service, room number, means of identification) did not invalidate service.
The applicant attacked the affidavit of service for non-conformity with Order 5 Rule 3, relying on Constance M. Mwakitwa and Fidelity Bank. The court held that the rule prescribes the persons upon whom service may be effected on a corporation, not the particulars a process server must record. Given subsequent service of multiple notices, the alleged omissions did not render the ex parte judgment irregular or entitle the applicant to have it set aside as of right.
Abuse of court process and delay
The applicant, being aware of the suit, was indolent and the application was an abuse of process brought at the eleventh hour.
The court noted service of a hearing notice (20/3/2019), mention notice (30/10/2019) and multiple taxation notices through 2020 and 2021, demonstrating the respondent's awareness. Only after the taxation notice did the applicant move the court. The court characterized this as resurfacing at the eleventh hour, an abuse of process it could not condone, and declined to reopen the suit or delay justice.
Legal principles established
#- Order 5 Rule 3 of the Civil Procedure Rules prescribes who may be served on a corporation (secretary, director or principal officer) but does not require the process server to state how he knew the person served; identification of the person served by name and role suffices.
- A party properly served who wilfully ignores proceedings and re-emerges at the last stage abuses court process and cannot have the ex parte judgment set aside.
Court orders
#- 1.The application dated 19th January 2021 is dismissed as unmerited
- 2.Execution of the judgment and decree to proceed
- Jurisdiction invoked
- Original employment and labour relations jurisdiction; application under the Civil Procedure Rules (Order 5; Order 42 rule 6(2)(b) referred in submissions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Ooko Nyamota v Beemtho Service Ltd [2021] KEELRC 1792 (KLR)", Case Analysis (2021). Cause No 485 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1792/eng@2021-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.