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ELRCPartially AllowedNot stated in judgment· [2022] KEELRC 745 (KLR)

Kenya Hotels and Allied Workers Union v Anoop Garg & 2 others [2022] KEELRC 745 (KLR)

Employment and Labour Relations Court
18 February 2022
MOMAUREEN ONYANGO
1,294 words in judgment
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The bottom line

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Kenya's Employment Court set aside a judgment against a man wrongly sued as a business partner, confirming you can't be held liable for a debt if you were never served.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Maureen Onyango, J on 18th February 2022, determined an application dated 29th September 2020 by Anoop Garg, the 1st Respondent in the underlying claim. He sought stay of execution of the decree and warrants of attachment, setting aside of the judgment delivered on 17th July 2020, and leave to defend the cause de novo. He contended that he was never served with summons, that he was an employee - not a partner - of Dave's Catering, the 3rd Respondent, and that he stood to suffer substantial loss, having learned of the judgment only when served with the decree and proclamation by auctioneers in September 2020. He relied on bank statements showing salary cheques. The Claimant/Decree holder opposed through a replying affidavit which, though referenced, was never filed on the portal or file. The court framed two issues: whether the Applicant was a director or employee of the Respondent, and whether he was entitled to the orders sought. Relying on the registration certificate naming Dave Umakant Jaidev and Dave Samirkumar Umakant as proprietors of Dave's Catering, and on the lease agreement signed by Umakant J. Dave as partner, the court found the Applicant an employee wrongly joined to the suit. Guided by Chemwolo v Kubende and Shah v Mbogo, it held the judgment against him irregular for want of service and set it aside, struck his name from the proceedings, and ordered no costs of the application. The judgment against the 2nd and 3rd Respondents remained unaffected.

Key legal issues

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01

Whether the Applicant was an employee rather than a partner of the 3rd Respondent

Holding

The Applicant was an employee, not a partner, and was wrongly joined as a respondent

Reasoning

The certificate of registration of Dave's Catering under the Registration of Business Names Act names Dave Umakant Jaidev and Dave Samirkumar Umakant as proprietors; the Applicant's name does not appear. Bank statements showed salary cheque entries, and the lease agreement with Nairobi Gymkhana was signed by Umakant J. Dave as partner. The Applicant was therefore an employee wrongly joined to the suit.

p. 2
02

Whether the judgment against the Applicant could be set aside

Holding

Yes - the Applicant was never served with summons and the judgment against him was irregular; the court's discretion to set aside applies

Reasoning

Relying on Philip Keptoo Chemwolo & another v Augustine Kubende and Shah v Mbogo, the court held that the discretion to set aside judgment exists to avoid injustice from accident, inadvertence or excusable mistake. Since the Applicant was never served and only learned of the judgment when served with the proclamation and decree by the auctioneer, the judgment against him was irregular and fell to be set aside.

p. 2

Legal principles established

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  • A person wrongly joined as a respondent, who was never served with summons and against whom judgment was irregularly obtained, is entitled to have the judgment set aside and his name struck out of the proceedings

Court orders

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  1. 1.The judgment in respect of the 1st Respondent ANOP GARG, the Applicant herein, is set aside and his name is struck out of the proceedings
  2. 2.The judgment in respect of Umakant J. Dave and Dave's Catering, the 2nd and 3rd Respondents, is not affected by these orders
  3. 3.There shall be no orders for costs of this application

Authorities

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Legislation

  • Registration of Business Names ActNot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (3)

  • Philip Keptoo Chemwolo & another v Augustine Kubende
    [1986] eKLR
  • Evans v Bartlam
    [1937] AC 473
  • Shah v Mbogo & another
    [1967] E.A.
Jurisdiction invoked
Court's inherent and discretion powers to set aside its judgments and orders (Employment and Labour Relations Court; discretionary power discussed per Philip Keptoo Chemwolo & another v Augustine Kubende)

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, "Kenya Hotels and Allied Workers Union v Anoop Garg & 2 others [2022] KEELRC 745 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/745/eng@2022-02-18

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