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ELRCDismissedApplication dated 29th January 2021 (arising from ELRC Claim decided 6th February 2020)· [2021] KEELRC 1870 (KLR)

Emily Catherine Masinde v Alfarooq Hospital also known as Alfarooq Hospital Management [2021] KEELRC 1870 (KLR)

Employment and Labour Relations Court
15 April 2021
LNLinnet Ndolo
1,195 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (Linnet Ndolo J) disposes of a Notice of Motion dated 29th January 2021 in which Alfarooq Hospital Limited sought to set aside an ex parte judgment of 6th February 2020 awarding the Claimant Kshs. 179,075 in compensation, house allowance and leave pay, which she was executing against the Applicant. The Applicant, through its Director Salahuddin Farooqi, argued that it was never served with summons, that it was a separate legal entity from Alfarooq Hospital Management, that it never employed the Claimant, and that it had been condemned unheard. The Claimant opposed, contending the Applicant was the same entity operating under changed names to escape the decree. The court framed a single issue: whether a case was made for setting aside the ex parte judgment under Order 10 Rule 11 of the Civil Procedure Rules. Examining the 'Memorandum of Understanding' of 29th September 2015 between Dr. Salahuddin Farooqi T/A Alfarooq Hospital and Miftah Construction and Supplies Limited T/A Alfarooq Hospital Management, the court found it to be in substance a lease, under which the facility's name remained Alfarooq Hospital Ltd. The Claimant's appointment letter bore the Alfarooq Hospital logo and her policies confirmed she was staff of Alfarooq Hospital. The Applicant failed to demonstrate any change of ownership or control or to avail licences showing who was licensed to run the Hospital. The court held service was properly effected on the Claimant's employer and dismissed the application with costs, vacating the interim orders of 1st February 2021.

Key legal issues

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01

Whether the ex parte judgment should be set aside for lack of proper service

Holding

Service was properly effected on the Claimant's employer, which chose not to respond; no basis for setting aside the judgment.

Reasoning

The court found service had been properly effected upon the employer entity, which elected not to enter appearance or defend. Since proper service was proved and the resulting judgment was therefore regular, the ex debito justitiae ground relied on by the Applicant, per National Bank of Kenya v Kalka Flowers, was unavailable.

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02

Whether the wrong party was sued, the Applicant claiming to be distinct from the entity that employed the Claimant

Holding

The wrong-party argument failed; the Claimant was employed by Alfarooq Hospital and no change of ownership or control was demonstrated.

Reasoning

The Claimant's appointment letter bore the Alfarooq Hospital logo and her Hospital Policies stated she was staff of Alfarooq Hospital. The 'Memorandum of Understanding' was in substance a lease, and the Applicant failed to avail licences or permits showing who was licensed to run the Hospital, nor its Memorandum and Articles showing capacity to operate a medical facility.

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Legal principles established

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  • Where there is no proper service, the resulting judgment is irregular and must be set aside as a matter of right
  • A party seeking to escape a decree by asserting a change of the employing entity must demonstrate a change of ownership or control

Court orders

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  1. 1.The application dated 29th January 2021 is dismissed with costs to the Claimant
  2. 2.The interim orders granted on 1st February 2021 are vacated

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (1)

  • National Bank of Kenya Limited v Kalka Flowers Limited & 2 others
    [2014] eKLR
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules (discretion to set aside ex parte judgment)

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, "Emily Catherine Masinde v Alfarooq Hospital also known as Alfarooq Hospital Management [2021] KEELRC 1870 (KLR)", Case Analysis (2021). Application dated 29th January 2021 (arising from ELRC Claim decided 6th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1870/eng@2021-04-15

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