Alwanga v Cedar Springs Limited (Employment and Labour Relations Cause 1600 of 2016) [2023] KEELRC 3324 (KLR)
The bottom line
#Kenya's Employment Court set aside a default judgment because the company was never properly served, giving it 35 days to file its defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the default judgment of 16th December 2021 was irregularly entered for want of proper service on the corporate Respondent
Yes - service on 'Vivian', who was neither a director nor principal officer of the company, breached Order 5 rule 3(a) of the Civil Procedure Rules and rule 12 of the ELRC Rules, rendering the ex parte judgment irregular.
The court applied Order 5 rule 3 of the Civil Procedure Rules and rule 12 of the ELRC Rules, which require service on a corporation to be effected on the secretary, director or principal officer. The process server deponed that he served 'Vivian', said to be a managing director, but the Respondent averred it never had such a director. The Claimant did not clarify Vivian's identity or position, and the process server should have been introduced by the Claimant to company officials. Service therefore failed to meet the statutory requirement, condemning the Respondent unheard.
Whether an irregular default judgment should be set aside without regard to triable issues or delay
Yes - an irregular default judgment is set aside ex debito justitiae, as a matter of right; the court need not consider triable issues or inordinate delay.
Relying on Babs Security Services Ltd v Mwarua Yawa Nzao, which quoted James Kanyiita Nderitu v Marios Philotas Ghikas, the court drew the distinction between regular and irregular default judgments. Where a defendant was not properly served, the judgment is set aside as of right because the party was condemned without notice of the allegations or an opportunity to be heard. Considerations of triable issues and delay apply only to regular default judgments.
Legal principles established
#- Service on a corporation must first be effected on the secretary, director or other principal officer; improper service renders an ex parte default judgment irregular and it must be set aside as of right.
Court orders
#- 1.The Respondent's Notice of Motion dated 18th May 2023 is allowed
- 2.The default judgment entered on 16th December 2021 is set aside as an irregular judgment
- 3.The Respondent is allowed to file its defence within 35 days, failing which the judgment will be upheld and execution will proceed
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over an employment claim; application under Order 10 rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alwanga v Cedar Springs Limited (Employment and Labour Relations Cause 1600 of 2016) [2023] KEELRC 3324 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3324/eng@2023-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.