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ELRCPartially AllowedNot stated in the excerpt provided· [2023] KEELRC 2781 (KLR)

Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Satisfaction Fine Bakers (Employment and Labour Relations Cause 124 of 2017) [2023] KEELRC 2781 (KLR)

Employment and Labour Relations Court
31 October 2023
1,785 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside an ex-parte judgment only because the company was misnamed, not because service was improper — ignoring court papers carries real costs.

What this practically means

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Executive summary

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The Respondent, Satisfction Bakers Limited, filed an application dated 2nd May 2021 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules 2010, seeking a temporary stay of execution, setting aside of the ex-parte judgment entered against it on 12th June 2020, and leave to file a defence. It claimed it was never served with summons or the memorandum of claim and only learned of the judgment when served with a hearing notice for contempt proceedings. The Claimant opposed, annexing affidavits of service showing summons were served on and acknowledged by Weston Kinyua on 10th September 2017. The court framed one issue: whether the ex-parte judgment and consequential orders should be set aside. Applying Patel v East Africa Cargo Handling Services Ltd and related authorities, the court found the Respondent was properly served but deliberately ignored the proceedings until threatened with contempt. The court rejected the Respondent's objections based on service effected on a Sunday, holding that Order 50 rule 9 does not prohibit such service but deems it effected on the next working day. Nevertheless, the court set aside the judgment solely because the Respondent's name was wrongly stated in the proceedings, reasoning that contempt proceedings are criminal in nature and doubtful if maintainable against a misnamed party given the doctrine of legal personality (Salomon v Salomon). The Respondent was ordered to bear the costs of the application, with throw-away costs of Kshs. 50,000 awarded to the Claimant, the court noting that Weston Kinyua Ngure had technically committed perjury in his two affidavits sworn on 2nd May 2021. Judgment delivered at Eldoret on 31st October 2023 by M. Onyango, Judge.

Key legal issues

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01

Whether the ex-parte judgment of 12th June 2020 should be set aside

Holding

The judgment was set aside, but not because the Respondent was improperly served or prejudiced; the court found service was proper and accepted, and set aside the judgment only because the Respondent's name was wrongly stated in the proceedings and contempt proceedings are criminal in nature

Reasoning

The court found that summons were served on and acknowledged by Weston Kinyua on 10th September 2017, and that the Respondent ignored proceedings until threatened with contempt. Service on a Sunday is deemed effected the next working day under Order 50 rule 9. However, because contempt proceedings are criminal in nature and the Respondent's name was misstated (engaging the issue of legal personality per Salomon v Salomon), the judgment was set aside to prevent maintaining such proceedings in a wrong name.

p. 4
02

Whether service on a Sunday or outside normal hours was irregular

Holding

Service outside normal days/hours is not prohibited; it is deemed effected on the next working day

Reasoning

The Respondent relied on service on 20th January 2019, a Sunday, and on a 2007 decision citing Order 39 Rule 8(2). The court distinguished that authority, noting the provisions are now in Order 50 rule 9, which does not prohibit such service but deems it effected on the next working day. Since summons in any event were accepted and acknowledged, the point did not assist the Respondent.

p. 4
03

Whether the Respondent was properly served with summons and the memorandum of claim

Holding

The court found the Respondent was properly served and deliberately ignored the proceedings

Reasoning

The Claimant annexed affidavits of service for the summons, mention and hearing notices, sworn by its General Secretary. Summons were served on Weston Kinyua who signed the reverse side on 10th September 2017. The Respondent never contested the signature, and the court noted that Weston Kinyua Ngure had 'technically committed perjury' in his two affidavits of 2nd May 2021.

p. 3

Legal principles established

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  • The discretion to set aside ex-parte judgments is exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay justice
  • Service effected on a Sunday or after 5 pm is not void; it is deemed effected on the next working day

Court orders

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  1. 1.The ex-parte judgment entered against the Respondent on 12th June 2020 and all consequential decrees/orders are set aside
  2. 2.The Respondent shall bear the costs of the application
  3. 3.The Claimant is awarded throw-away costs of Kshs. 50,000

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 10 Rule 11
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 50 rule 9

Cases cited (9)

  • Patel v East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • Pithon Waweru Maina v Thuka Mugiria
    [1983] eKLR
  • Toshike Construction Company Limited v Harambee Co-operative Savings & another
    [2019] eKLR
  • Shah v Mbogo
    [1967] EA 116
  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA
  • Mbogo v Shah
    [1968] EA 93
  • John Nyangena v Okoth Jamali t/a Alpha Bridge Security Services
    [2018]
  • Peter Kamau Ikigu v Peterson Ogino Ongaro
    [2007] eKLR
  • Salomon v Salomon
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules 2010

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, "Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Satisfaction Fine Bakers (Employment and Labour Relations Cause 124 of 2017) [2023] KEELRC 2781 (KLR)", Case Analysis (2023). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2781/eng@2023-10-31

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