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ELRCDismissed· [2024] KEELRC 612 (KLR)

Karoki v Stepwise Inc (Employment and Labour Relations Cause E817 of 2021) [2024] KEELRC 612 (KLR)

Employment and Labour Relations Court
1 March 2024
AMAnna Ngibuini Mwaure
1,819 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee's entire lawsuit was dismissed because summons were never issued and served, even though the court found Kenya had jurisdiction over the foreign employer.

What this practically means

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Executive summary

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The Respondent filed a notice of preliminary objection dated 25th September 2023 against the Claimant's Statement of Claim filed on 22nd September 2021 (suit filed 30th September 2021) on three grounds: failure by the Claimant to take out summons for over a year; failure to seek leave to serve the Respondent outside the court's jurisdiction, the Respondent being a United States entity; and lack of jurisdiction because the employment contract was said to be governed by United States law. The Claimant did not respond to the objection. Applying the Mukisa Biscuit test for a valid preliminary objection, the court found that Order 5 Rule 1 of the Civil Procedure Rules, 2010, which requires summons to issue and be collected for service within thirty days, is couched in mandatory terms, and that the Claimant's failure to take out and serve summons for more than one year was a fundamental omission not curable under Article 159 of the Constitution. On the third ground, the court held that the undated employment contract showed the Respondent operated in Kenya through its wholly owned subsidiary, Daphroim Africa Ltd, registered in Kenya, with the principal place of employment in Westlands, Nairobi; following Shadrack Wachira Gikonyo v Abt Associates Inc, the Respondent has legal status in Kenya and that ground failed. Nonetheless, the objection was upheld on the summons ground and the suit filed on 30th September 2021 was dismissed, with each party to meet their own costs.

Key legal issues

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01

Failure to take out and serve summons for over one year

Holding

Preliminary objection upheld; suit dismissed for breach of mandatory Order 5 Rule 1 of the Civil Procedure Rules

Reasoning

The claim was filed on 30th September 2021 and summons had not been taken out or served for over a year. Order 5 Rule 1 requires summons to issue and be collected for service within thirty days, failing which the suit abates. Relying on Mukisa Biscuit and the authorities on mandatory service of summons, and noting the Claimant did not respond to the objection, the court found the objection merited.

p. 3
02

Alleged lack of jurisdiction because the contract is governed by United States law

Holding

Ground rejected; the Respondent has legal status in Kenya

Reasoning

The undated employment contract showed the Respondent operates in Kenya through its wholly owned subsidiary, Daphroim Africa Ltd, registered in Kenya, and the principal place of employment was in Westlands, Nairobi. Following Shadrack Wachira Gikonyo v Abt Associates Inc, the balance of convenience and the Respondent's presence in Kenya anchored jurisdiction in Kenya.

p. 4

Legal principles established

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  • A plaint cannot stand alone without summons issued to the defendant; issuance and service of summons under Order 5 Rule 1 is mandatory and failure to comply is fatal to the suit
  • Where a respondent entity operates in Kenya through a registered subsidiary and the place of employment is in Kenya, an objection based on foreign governing law does not oust the Kenyan court's jurisdiction

Court orders

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  1. 1.The notice of preliminary objection dated 25th September 2023 is merited and is granted
  2. 2.The suit filed on 30th September 2021 is dismissed
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 5 Rule 1
  • Civil Procedure Rules, 2010Order 5 Rule 2
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Act (Cap 21)Sections 1A and 1B

Cases cited (6)

  • Juma Abdalla Vitu v Kwale Water and Sewerage Co. Ltd
    [2015] eKLR
  • DNK v GS (Civil Suit 4 Of 2021)
    [2022] KEHC 547 (KLR) (26 April 2022) (Ruling)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Grace Obuya Okumu (suing as the legal administratix of the Estate of Obadia Ambar Okumu (Deceased) v Diriri Mohamed Diriri & another
    [2018] eKLR
  • Shadrack Wachira Gikonyo v Abt Associates Inc
    [2017] eKLR
  • American Express International Banking
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under its establishing statute; court assessed territorial jurisdiction over a respondent based in the United States but operating in Kenya

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, "Karoki v Stepwise Inc (Employment and Labour Relations Cause E817 of 2021) [2024] KEELRC 612 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/612/eng@2024-03-01

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