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ELRCDismissedNot stated in the judgment· [2024] KEELRC 1235 (KLR)

Wachira v Proshade Kenya Limited (Cause E885 of 2021) [2024] KEELRC 1235 (KLR)

Employment and Labour Relations Court
6 February 2024
NMNzioki Wa Makau
2,651 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Respondent/Applicant filed a Notice of Motion dated 27th November 2023 seeking to set aside an interlocutory judgment entered against it in the Claimant's favour, together with consequential proceedings, and leave to enter appearance and file a Response out of time. Through the affidavit of its Managing Director, Lemi Mwendar, the Respondent contended it never received emails containing the summons and pleadings, that service on a corporation contrary to Order 5 rule 3 of the Civil Procedure Rules (requiring service on a secretary, director or principal officer) was improper, and that only proof of sent emails, not delivery receipts under Order 5 Rule 22B(4), was filed. The Claimant opposed, showing a process server could not trace the Respondent at its last known premises, and that service was effected on 11th January 2022 by email to the company and the director's personal addresses, with an affidavit of service duly filed. The Claimant argued the draft defence was a sham of mere denials and the application was designed to delay justice. The court framed three issues: propriety of service, whether the interlocutory judgment should be set aside, and costs. It held service was proper as it was directed at a director of the company, the correct person. The draft defence raised no triable issues, and the Respondent's failure to participate was deliberate. The Notice of Motion was dismissed with costs to the Claimant.

Key legal issues

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01

Whether service by email on the Respondent was proper

Holding

Service was proper because the email with summons and pleadings was sent to the Respondent's director's email addresses and an affidavit of service was duly filed

Reasoning

The email of 11th January 2022 attached the statement of claim, verifying affidavit, list of witnesses, witness statement, bundle of documents and summons, and was addressed to the director's addresses as well as the company email. An affidavit of service indicating service on the director was duly filed. The court was satisfied service was directed at the correct person and mention notices were served on the same addresses.

p. 5
02

Whether the interlocutory judgment and consequential proceedings should be set aside

Holding

The application to set aside was dismissed because the defence raised no triable issues and the Respondent's failure to participate was deliberate

Reasoning

Having found service proper, the court considered whether the draft defence raised triable issues. It found the defence consisted of mere denials. It further concluded that the Respondent's non-participation was deliberate, so no relief could be granted. The discretion to set aside default judgment is not meant to assist a party guilty of deliberate obstruction or delay.

p. 5

Legal principles established

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  • Service of summons and pleadings by electronic mail addressed to a director of a company at the company's and director's email addresses constitutes proper service on the corporation

Court orders

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  1. 1.Respondent's Notice of Motion application dated 27th November 2023 dismissed
  2. 2.Costs of the application awarded to the Claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 5, rule 3
  • Civil Procedure (Amendment) Rules 2020Order 5, Rule 22B(2)
  • Civil Procedure (Amendment) Rules 2020Order 5, Rule 22B(4)
  • Constitution of KenyaArticles 21(1), 25(c), 47(1), 48 and 159(2)(d)

Cases cited (3)

  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Sifuna & Sifuna Advocates v Patrick Simiyu Khaemba
    [2021] eKLR
  • Mathews v Masika
    (Civil Case E180 of 2022) [2022] KEHC 12194 (KLR)
Jurisdiction invoked
Original employment and labour relations jurisdiction; discretion under the Civil Procedure Rules to set aside default judgment

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, "Wachira v Proshade Kenya Limited (Cause E885 of 2021) [2024] KEELRC 1235 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1235/eng@2024-02-06

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