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ELRCAllowedNot stated in judgment (ruling on Notice of Motion dated July 5, 2023)· [2023] KEELRC 3199 (KLR)

Mogara v Spur Security Services Limited (Employment and Labour Relations Cause 1700 of 2017) [2023] KEELRC 3199 (KLR)

Employment and Labour Relations Court
1 December 2023
1,903 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Respondent/Judgment Debtor, a company, moved the Employment and Labour Relations Court by Notice of Motion dated July 5, 2023 seeking stay of execution of a decree, setting aside of an ex parte judgment entered on March 18, 2022, and costs. It deponed that it was ambushed by warrants of attachment for Kshs 313,816/97, that the process server's affidavit of service of April 23, 2018 showed service on an unnamed gentleman whose connection to the company was not established, that the claimant resigned rather than being terminated, and that it had a good defence. The Claimant/Decree Holder opposed, relying on the affidavit of service, arguing the service evidence was uncontroverted, and contending there was inordinate delay of about five years and indolence on the part of the respondent. The court framed two issues: whether proper service was effected, and whether the ex parte judgment should be set aside. Applying rule 12(1) of the ELRC (Procedure) Rules 2016 and the Court of Appeal's decision in Babs Security Services Ltd v Mwarua Yawa Nzao (which applied Total Kenya Ltd v Supa Haulier Ltd and James Kanyiita Nderitu), the court held that service on a corporate body must first be attempted on its principal officers and the affidavit of service must justify the mode adopted. The process server made no effort to serve principal officers or identify the recipient; service was therefore irregular. An irregularly entered default judgment is set aside as of right, without inquiry into delay or triable issues. The court set aside the judgment and decree and gave conditional directions for filing the response within 21 days, failing which the judgment would be upheld and execution could proceed.

Key legal issues

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01

Whether service on the respondent company was properly effected

Holding

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.

Reasoning

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.

p. 4
02

Whether the ex parte judgment should be set aside

Holding

Yes - the judgment was irregularly entered and is set aside as a matter of right, without consideration of delay or triable issues.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The ex parte judgment given on March 18, 2022 and the decree are set aside as an irregular judgment.
  2. 2.The respondent to file its response and witness statements within 21 days.
  3. 3.Case to be mentioned on December 20, 2023 to give a hearing date.
  4. 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.

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 12(1) and rule 12(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Charles Mwalia v The Kenya Bureau of Standards
    Nairobi HCCC No. 1058 of 2000; (2001) 1EA
  • Fred Odhiambo Obura vs SGS Kenya Limited
    [2019] eKLR
  • Prime Bank Ltd vs Paul Otieno Nyamodi
    [2014] eKLR
  • Babs Security Services Ltd v Mwarua Yawa Nzao & 19 others
    [2019] eKLR
  • Total Kenya Limited vs Supa Haulier Limited
    [2003] eKLR
  • James Kanyiita Nderitu & Another vs Marios Philotas Ghikas & another
    [2016] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.