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ELRCAllowedCause No 548 of 2016· [2023] KEELRC 2209 (KLR)

Mungai & 4 others v Bomn Motors Limited & 2 others (Cause 548 of 2016) [2023] KEELRC 2209 (KLR)

Employment and Labour Relations Court
22 September 2023
AMANNA NGIBUINI MWAURE
2,684 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court set aside an ex parte judgment because the claimants never properly served the defendants, meaning cases won through flawed service can collapse.

What this practically means

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Executive summary

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The 3rd respondent filed a notice of motion dated February 16, 2023 seeking stay of execution and setting aside of an ex parte judgment delivered by Hon. Lady Justice Maureen Onyango on December 10, 2022, together with extension of time to file a response. She averred she was never served and only learnt of the claim when auctioneers proclaimed her household goods on February 8, 2023. She further contended she never employed the claimants, that the claim rested on a letter dated August 25, 2011 authored by the 1st respondent, and that the signature attributed to the 2nd respondent (her late husband, who died October 31, 2021) was not his. The claimants opposed, relying on an affidavit by their process server, Tom Kayere, who deponed that he served summons on Thomas Ndegwa, the son of the 2nd and 3rd respondents, who declined to sign. In determining the application, the court adopted Mwala v Kenya Bureau of Standards on the distinction between regular and irregular ex parte judgments, and Yalwala v Indumuli on substituted service under Order 5 rule 12. The court found the process server made only two attempts, and was told the respondents were in the house yet still served their son; service was therefore improper, rendering the ex parte judgment irregular. The court also noted the claimants continued with hearing despite the 2nd respondent's death without substitution, and that there was no proof of an employer/employee relationship with the 3rd respondent, the corporate veil not having been lifted. The court set aside the ex parte judgment and directed the claim to proceed to hearing afresh, with pre-trial on October 4, 2023, and awarded the 3rd respondent the costs of the application.

Key legal issues

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01

Whether service on the 3rd respondent's adult son amounted to valid service

Holding

Service was improper because the process server failed to make a reasonable number of attempts at personal service and was told the respondents were in the house but still served the son.

Reasoning

Order 5 rule 12 permits substituted service on an adult family member only where the defendant cannot be found after reasonable attempts. Here the process server visited the residence twice and was told the respondents were home, yet served their son instead of insisting on personal service. Following Yalwala v Indumuli, such service is invalid without adequate enquiry, rendering the ensuing judgment irregular.

p. 5
02

Whether the ex parte judgment should be set aside

Holding

Yes; being irregular for want of proper service, it was set aside and the claim set down for hearing afresh.

Reasoning

Applying Mwala v Kenya Bureau of Standards, an irregular judgment obtained without proper service must be set aside ex debito justitiae rather than as a discretionary matter. The court was satisfied the service was improper, and additionally noted the claimants had proceeded with hearing despite the 2nd respondent's death without substitution or informing the court.

p. 6
03

Whether the 3rd respondent was properly sued

Holding

There was no proof of an employer/employee relationship with the 3rd respondent and the claimants did not lift the corporate veil.

Reasoning

The claimants themselves averred they were employees of the 1st respondent. The 3rd respondent was sued as a director on the basis of a letter allegedly signed by the 2nd respondent, but no company resolution binding her was produced, and the claimants did not plead factors warranting lifting of the corporate veil as required by Victor Mabachi & another v Nurtun Bates Limited.

p. 6

Legal principles established

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  • Where an ex parte judgment is obtained without proper service of summons, it is irregular and must be set aside as of right, not as a matter of discretion.
  • Service on an adult family member under Order 5 rule 12 is valid only where the defendant cannot be found after a reasonable number of attempts and adequate enquiry.

Court orders

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  1. 1.The ex parte judgment dated December 10, 2022 together with all consequential orders is set aside
  2. 2.The case to proceed for hearing afresh, with pre-trial hearing on October 4, 2023
  3. 3.Claimants to meet the costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 5 rule 12
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (7)

  • Victor Mabachi & another v Nurtun Bates Limited
    [2013] eKLR
  • Charles Mwalia v Kenya Bureau of Standards
    HCCC 1058 of 2000
  • Patel v East African Cargo Services Ltd
    [1974] EA 75
  • Mwala v Kenya Bureau of Standards
    EA LR (2001) 1 EA 148
  • Yalwala v Indumuli & another
    [1989] eKLR
  • Waweru v Kiromo
    [1969] EA 172
  • Royal British Bank v Turquand
    (1856) 6 E&B 327
Jurisdiction invoked
First-instance jurisdiction over the employment claim and the court's inherent discretion under the Civil Procedure Rules to set aside an ex parte judgment (Order 5 rule 12; Article 159(2)(d) of the Constitution)

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, "Mungai & 4 others v Bomn Motors Limited & 2 others (Cause 548 of 2016) [2023] KEELRC 2209 (KLR)", Case Analysis (2023). Cause No 548 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2209/eng@2023-09-22

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