Wahome v Lupra Manpower & Human Resource Services Limited & another (Cause 924 of 2017) [2024] KEELRC 1851 (KLR)
The bottom line
#A Kenyan employment court refused to undo a judgment against a company that ignored properly served court papers, confirming service on a company secretary counts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd Respondent's Notice of Motion dated 21st March, 2024 is merited
- 2.Whether the 2nd Respondent has made a sustainable case for the variation, review and/or setting aside of the judgment delivered on 30th November, 2023
- 3.Whether leave ought to be granted for the 2nd Respondent to file its response to the claim and attendant documents
- 4.Whether the application was made within a reasonable time
- 5.Whether service of summons upon the 2nd Respondent was defective or improper
- 6.Whether the draft defence raises arguable issues
Key legal issues
#Review under Rule 33(1) ELRC Procedure Rules for mistake or error apparent on the face of the record
The 2nd Respondent failed to demonstrate any error apparent on the face of the record; the judgment was based on the totality of evidence
The court had considered the Claimant's presence at the 2nd Respondent's premises, the referral to Nairobi West Hospital indicating he was working for the 2nd Respondent, and the bills sent to it. The applicant did not identify the specific paragraph of the judgment containing the alleged error, and a payslip was not a contractual document. The 3-month delay was not inordinate.
Regularity of service of summons on the 2nd Respondent
Service was properly effected on a secretary of the corporate body under Rule 12 of the ELRC Procedure Rules; the 2nd Respondent did not deny the fact of service or seek cross-examination of the process server
A process server served a Secretary at the 2nd Respondent's premises who stamped, signed and timed the summons. The applicant did not deny having a secretary, contested only the 'properness' of service, and never faulted the Affidavit of Service. The burden lay on the party questioning service.
Arguability of the draft defence (employer-employee relationship)
The draft defence raised no triable issue; the arrangement between the Respondents was designed to obscure who the employer was, and the 1st Respondent maintained the 2nd Respondent was the employer
The contract relied on had its cover page omitted, making parties indiscernible; no evidence of a request or refund was tendered; the 1st Respondent's affidavit and grounds of opposition affirmed the 2nd Respondent was the Claimant's employer; quantum was unchallenged.
Legal principles established
#- For an error or mistake on the face of the record to be sustained it must be self-evident and require no elaborate argument
- The burden of proving improper service lies on the party questioning service, and where service is denied the process server should be cross-examined
- Where there was no service or improper service, the default judgment is set aside as of right
Court orders
#- 1.The 2nd Respondent's Notice of Motion dated 21st March, 2024 is dismissed with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Orders 10, 12, 22 and 51 of the Civil Procedure Rules, 2010
Relief refused
#Variation, review and/or setting aside of the judgment and decree of 30th November, 2023
No error apparent on the face of the record under Rule 33(1); service was proper; draft defence not arguable
Leave to file response to the claim
Follows the dismissal of the review/setting-aside application
Stay of the Proclamation Decree
Interim stays lapsed with dismissal of the main application
Costs
Dismissed with no orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot, the 2nd Respondent’s Notice of Motion dated 21st March, 2024 is unmerited and it is accordingly dismissed with no orders as to costs.
It is trite law that for a mistake or error on the face of the record to be sustained, it must be self-evident and requires no elaborate arguments to be demonstrated.
Principally, if the court comes to the conclusion that there was no service or that it was improper, the default judgment is set aside ex debito justiciae.
An afidavit of service must prima facie disclose proper and actual service for it is on the basis of this service that judgment is entered . . .
The 2nd Respondent’s hands are tainted with lies, half-truths and non-disclosure
Issues in the judgment
#The judgment refers to the decision in Shadrack Arap Boiywo V Bodi Bach with two differing spellings ('Boiywo' and 'Baiywo')
The citation for Raghbir Singh Chatte V Miwani Sugar Company is internally inconsistent
The case name of the Ngenda decision is garbled ('& 7 and another')
The opening paragraphs 1 and 2 of the judgment are blank, and the case number/tile of the suit is not reproduced in this ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wahome v Lupra Manpower & Human Resource Services Limited & another (Cause 924 of 2017) [2024] KEELRC 1851 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1851/eng@2024-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.