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ELRCAllowedNot stated in judgment· [2024] KEELRC 246 (KLR)

Koech v Advanced Innovations Limited; Alphonce Mutinda & Co Advocates (Interested Party) (Cause 13 of 2013) [2024] KEELRC 246 (KLR)

Employment and Labour Relations Court
15 February 2024
4,145 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court set aside an entire employment case because a law firm pretended to represent the employer without instructions, meaning judgment entered without proper service cannot stand.

What this practically means

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Executive summary

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The Respondent/Applicant, a company operating a casino, filed a Notice of Motion dated 3rd November 2023 seeking leave for new advocates to come on record, a stay of execution of a judgment delivered on 23rd November 2023 and a decree of 25th April 2019, and setting aside of the judgment, contending it was never served with summons or pleadings, that no affidavit of service existed, and that the firm of Alphonce Mutinda & Co. Advocates entered appearance without instructions in collusion with the Claimant. The Claimant/Respondent opposed, asserting due service acknowledged by the Respondent's stamp, a properly filed defence by the said firm, and that the Respondent could not piggyback on its own lack of vigilance. The Respondent's Supplementary Affidavit by its General Manager denied receipt of the demand letter, alleged forgery of a signature, and challenged the admissibility of the Claimant's advocate-sworn Replying Affidavit. After submissions, the court found that Alphonce Mutinda & Co. Advocates had no instructions and had practiced a fraud on the court, that there was no valid representation of the Respondent, and that the alleged service was a farce. The court directed a complaint to the LSK Advocates Disciplinary Committee, granted the Respondent leave to file a response within 14 days, set aside the proceedings in their entirety, ordered the matter heard afresh, recused itself, and referred the file to the Presiding Judge, Claims & Labour Division, for reassignment.

Key legal issues

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01

Whether the Respondent was served with summons and pleadings

Holding

The court found that the alleged service was a farce; there was no affidavit of service and the appearance was entered by advocates without instructions, so the Respondent was never properly before the court.

Reasoning

The court noted the summons to enter appearance were missing from the court file, no affidavit of service existed as required by Order 5 rule 15(1), and a preliminary ruling had already sought to impugn the advocate who failed to appear. The court concluded that the firm of Alphonce Mutinda & Co. Advocates had no instructions and practiced a fraud on the court, rendering the service of process a farce designed to depict the Respondent as disinterested.

p. 7
02

Whether the judgment of 23rd November 2023 was irregular and ought to be set aside

Holding

Yes. Because there was no proper service and no valid representation, the default judgment was irregular and was set aside with the entire proceedings and the matter ordered to be heard afresh before another judge.

Reasoning

Following the principle that a default judgment entered without service is an irregular judgment liable to be set aside ex debito justitiae, the court held that since the Respondent had no representation and service was a farce, the judgment could not stand. The court set aside the proceedings in their entirety, granted leave to file a response, and recused itself given its findings on potential other culprits, directing the file to the Presiding Judge for reassignment.

p. 7
03

Whether Alphonce Mutinda & Co. Advocates had instructions to act for the Respondent

Holding

No. The court found the firm had no instructions, pretended to represent the Respondent, failed to attend court, and practiced a fraud on the court.

Reasoning

The court had issued a preliminary ruling seeking to have the impugned advocate appear, but the advocate failed, refused or neglected to appear. From the material before it, the court concluded the firm never received instructions from the Respondent, entered a Memorandum of Appearance and filed a defence without authority, and poorly conducted the matter by not attending court when required, warranting referral to the LSK Disciplinary Committee.

p. 7
04

Whether the Replying Affidavit sworn by the Claimant's advocate should be struck out

Holding

The application to strike out was not upheld; no order striking out the affidavit was made.

Reasoning

The Respondent argued that an advocate cannot swear an affidavit on contested facts, particularly on service, relying on Order 19 rule 3(1) and Regina Waithira Mwangi Gitau v Boniface Nthenge. The Claimant countered with authority that there is no express prohibition against an advocate swearing an affidavit on facts within their personal knowledge. The court did not strike out the affidavit, instead proceeding to determine the application on the wider question of service and representation.

p. 5

Legal principles established

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  • Where an advocate on record had no instructions from the party, any purported representation and service of process is a nullity and ex parte proceedings founded on it must be set aside.
  • Where the court finds service was a farce, the proceedings must be set aside in their entirety and the matter heard afresh.

Court orders

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  1. 1.The firm of Alphonce Mutinda & Company Advocates is to be reported to the Advocates Disciplinary Committee of the LSK, with the Deputy Registrar of the Court serving a copy of the Ruling
  2. 2.Leave granted to the Respondent to file a response to claim, statements and a bundle of documents within 14 days
  3. 3.Proceedings before the court set aside in their entirety and the matter ordered to be heard afresh
  4. 4.The Judge recused himself from hearing the case further
  5. 5.The matter directed to be placed before the Presiding Judge Claims & Labour Division for directions as to which Judge in the Division will hear the claim
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over the claim; application brought under the Civil Procedure Rules (Order 5 and Order 19 provisions cited)

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, "Koech v Advanced Innovations Limited; Alphonce Mutinda & Co Advocates (Interested Party) (Cause 13 of 2013) [2024] KEELRC 246 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/246/eng@2024-02-15

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