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ELRCPartially AllowedNotice of Motion dated 8th March 2023 (ELRC cause, judgment entered 15th December 2022)· [2023] KEELRC 2403 (KLR)

Kenya Union of Comercial Food and Allied Workers v Kenya Credit Traders Limited (Cause E033 of 2022) [2023] KEELRC 2403 (KLR)

Employment and Labour Relations Court
6 October 2023
OMOnesmus N Makau
2,491 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 is a ruling of the Employment and Labour Relations Court at Nyeri (Makau J) on the respondent's Notice of Motion dated 8th March 2023 seeking to set aside a default judgment entered against it on 15th December 2022 after the suit proceeded to formal proof. The applicant, a company (KCT), deponed through its HR Manager that it only learnt of the judgment when a copy was dropped at its head office by an unknown person on 23rd February 2023; that it was never served with summons or pleadings; that the company stamp on the served documents was not countersigned and may have been manufactured; and that emailed mention notices were never received. The claimant union opposed, relying on affidavits of service showing stamped receipt of summons and the memorandum of claim on 13th July 2022 and subsequent email service of mention notices, and contending the application was a delay tactic against execution of the decree. The court framed three issues: due service, irregularity of the judgment, and the threshold for setting aside default judgment. Applying rules 11 and 12 of the ELRC Procedure Rules, 2016, it held that an affidavit of service must name or describe the recipient and state whether they declined to sign; here the process server served an unnamed person at reception, so service was defective. The court allowed the application, set aside the judgment and subsequent proceedings, granted the applicant 14 days to file its defence and evidence, and awarded the claimant throwaway costs of Kshs 10,000.

Key legal issues

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01

Whether service of summons and pleadings on the applicant was proper

Holding

Service was defective because the affidavit of service did not name or describe the person served at the reception and did not state whether the recipient declined to sign.

Reasoning

Rules 11 and 12 of the ELRC Procedure Rules, 2016 require service on a corporate body on the secretary, director or principal officer, with alternatives where officers cannot be found. An affidavit of service must state the name of the recipient and, if the recipient declined to sign, say so. Here the process server served an unnamed person at reception; the affidavit was silent on these crucial matters, so service fell short of the threshold.

02

Whether the default judgment of 15th December 2022 was irregular and should be set aside

Holding

Having found no proper service, the judgment was irregular and was set aside, with leave to file a defence within 14 days and throw away costs to the claimant.

Reasoning

The court emphasised that process servers owe a duty to effect proper service in strict compliance with the rules, and that courts must protect the constitutional right to a hearing before judgment and natural justice. A judgment obtained behind a party's back must be set aside once improper service is demonstrated; consequently the applicant was given its day in court.

p. 5

Legal principles established

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  • An affidavit of service on a corporate body must name or describe the recipient of the documents; service on an unnamed person at reception without explanation is defective.
  • A judgment obtained behind the back of a party due to improper service will be set aside once improper service is demonstrated.

Court orders

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  1. 1.The application is allowed and the judgment delivered on 15th December 2022 and the subsequent proceedings are set aside.
  2. 2.The applicant is granted 14 days within which to file defence and supporting evidence.
  3. 3.Throw away costs of 10,000 awarded to the claimant, to be paid within 14 days of the Ruling.

Authorities

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Legislation

  • Employment and Labour Relations Court Actsections 12(3)(i) & (vii), 29(1)
  • Constitution of Kenyaarticle 159(2)
  • Civil Procedure RulesOrder 5 rule 8
  • Civil Procedure RulesOrder 5 rule 22
  • Employment and Labour Relations Court (Procedure) Rules, 2016rules 11, 12, 28(3)

Cases cited (3)

  • Loice Wanjiru v Grace Wanjiku Mwangi
    [1990] eKLR
  • Panchal Trading (K) Limited v NF Metals Corporation
    [2021] eKLR
  • Tana Trading Limited v National Cereals and Produce Board
    [2015] eKLR
Jurisdiction invoked
Sections 12(3)(i) & (vii) and 29(1) of the Employment and Labour Relations Court Act and article 159(2) of the Constitution of Kenya

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 Union of Comercial Food and Allied Workers v Kenya Credit Traders Limited (Cause E033 of 2022) [2023] KEELRC 2403 (KLR)", Case Analysis (2023). Notice of Motion dated 8th March 2023 (ELRC cause, judgment entered 15th December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2403/eng@2023-10-06

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