Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Satisfaction Fine Bakers (Employment and Labour Relations Cause 124 of 2017) [2023] KEELRC 2781 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ex-parte judgment of 12th June 2020 should be set aside
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
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.
Whether service on a Sunday or outside normal hours was irregular
Service outside normal days/hours is not prohibited; it is deemed effected on the next working day
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.
Whether the Respondent was properly served with summons and the memorandum of claim
The court found the Respondent was properly served and deliberately ignored the proceedings
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.
Legal principles established
#- 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
#- 1.The ex-parte judgment entered against the Respondent on 12th June 2020 and all consequential decrees/orders are set aside
- 2.The Respondent shall bear the costs of the application
- 3.The Claimant is awarded throw-away costs of Kshs. 50,000
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.