Mwandale v Integrated Science and Engineering Projects Ltd (Cause 1618 of 2018) [2024] KEELRC 2756 (KLR)
The bottom line
#Kenya's Employment Court set aside a default judgment because the affidavit of service was defective, confirming that improper service makes such judgments voidable as of right.
What this practically means
#Executive summary
#Key legal issues
#Validity of service on a corporation and the adequacy of the affidavit of service
The affidavit of service on record was defective for failure to disclose the time of service, the name of the person served and the name of the person identifying the person to be served, contrary to Order 5 Rules 3 and 15 of the Civil Procedure Rules, and the affidavit produced by the Respondent dated 4th July 2020 was not on the Court record and bore no Court stamp.
Service on a corporation must be effected on the secretary, director or other principal officer under Order 5 Rule 3. An affidavit of service must state when and how summons was served and identify the person served and any witness, per Order 5 Rule 15. The only affidavit on record, sworn by Antony S. Lyuba, met none of these requirements: it named no person served, gave no time of service, and the Respondent's version varied from the record.
Whether the default judgment was regular or irregular and the consequences for setting it aside
The judgment of 28th March 2024 was an irregular default judgment because the Applicant was not properly served; it had to be set aside as a matter of right without regard to a draft defence, delay or security for the judgment.
Applying James Kanyita Nderitu v Maries Philotas Ghika, an irregular judgment entered against a defendant not served or not properly served is set aside ex debito justiciae; the court need not consider triable issues or delay because the defendant was condemned unheard. The Applicant was not served with a single date of proceedings, breaching Audi Alteram Partem.
Whether the Applicant needed to file a draft defence or provide security for the judgment
Where the judgment is irregular, the Applicant did not need to file a draft defence or deposit security for the judgment.
The Court of Appeal's framework distinguishes regular default judgments, where discretion applies, from irregular ones, where the judgment is set aside as of right and the court does not venture into considerations of triable issues, delay, draft defences or security. Having found defective service, the Court held these requirements inapplicable.
Legal principles established
#- Where the affidavit of service leading to default proceedings is defective, the resulting default judgment is irregular and must be set aside as a matter of right (ex debito justiciae), without requiring a draft defence or security for the judgment
- An affidavit of service must state the time and manner of service and the name and address of the person served and identifying the person served, failing which service on a corporation is defective under Order 5 Rules 3 and 15 of the Civil Procedure Rules
- Proceedings conducted without proper service breach the rule of natural justice that no party shall be condemned unheard
Court orders
#- 1.The application dated 22nd July 2024 is allowed on account of defective affidavit of service
- 2.The default judgment entered for the Respondent against the Applicant and delivered on the 28th March 2024 by Justice Ocharo Kebira is set aside together with all consequential orders
- 3.Costs of the application to the Applicant
- 4.The Respondent is at liberty to serve the summons, the statement of claim and annexures afresh in compliance with the law for the suit to be heard de novo
- Jurisdiction invoked
- Order 10 Rule 11 and Order 51 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159(2)(a, b and d) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwandale v Integrated Science and Engineering Projects Ltd (Cause 1618 of 2018) [2024] KEELRC 2756 (KLR)", Case Analysis (2024). Cause No 1618 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2756/eng@2024-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.