Mogara v Spur Security Services Limited (Employment and Labour Relations Cause 1700 of 2017) [2023] KEELRC 3199 (KLR)
The bottom line
#A Kenyan court set aside a default judgment against a company because the court papers were served on the wrong person, not a company officer.
What this practically means
#Executive summary
#Key legal issues
#Whether service on the respondent company was properly effected
Service was irregular because the process server did not attempt to serve the company's principal officers and did not record the name or designation of the person served.
Rule 12(1) of the ELRC (Procedure) Rules 2016 requires service on a corporate body to be effected on the secretary, director or principal officer, with alternative modes only where officers cannot be found. The process server left documents with an unnamed gentleman at the administration block, made no effort to serve principal officers or ascertain his identity, and the affidavit of service did not justify the mode adopted. Following Babs Security Services Ltd v Mwarua Yawa Nzao and Total Kenya Ltd v Supa Haulier Ltd, the court held the service contrary to the prescribed procedure.
Whether the ex parte judgment should be set aside
Yes - the judgment was irregularly entered and is set aside as a matter of right, without consideration of delay or triable issues.
Citing Babs Security Services and James Kanyiita Nderitu, the court held that where judgment is entered against a party not properly served, it is irregular and set aside ex debito justitiae; the court need not consider inordinate delay or triable issues because the party was condemned without notice or opportunity to be heard. Having found service irregular, the court found the application merited and set aside the judgment and decree, with conditional directions for filing the response.
Legal principles established
#- A default judgment entered against a party not properly served with summons is an irregular judgment and must be set aside as a matter of right, without considering triable issues or delay.
- Service on a corporate body must first be attempted on its principal officers; the affidavit of service must justify the mode of service opted for.
Court orders
#- 1.The ex parte judgment given on March 18, 2022 and the decree are set aside as an irregular judgment.
- 2.The respondent to file its response and witness statements within 21 days.
- 3.Case to be mentioned on December 20, 2023 to give a hearing date.
- 4.If the response and witness statements are not filed by December 20, 2023, the judgment and decree will be upheld and execution can proceed.
- Jurisdiction invoked
- Inherent application to set aside ex parte judgment; Employment and Labour Relations Court (Procedure) Rules, 2016, rule 12 (service on corporate bodies)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Plantation & Agricultural Workers Union v Solio Ranch Limited (Cause E030 of 2024) [2025] KEELRC 1850 (KLR)[2025] KEELRC 1850 (KLR)24 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Mogara v Spur Security Services Limited (Employment and Labour Relations Cause 1700 of 2017) [2023] KEELRC 3199 (KLR)", Case Analysis (2023). Not stated in judgment (ruling on Notice of Motion dated July 5, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3199/eng@2023-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.