Masscon Construction Company Limited v Emojong (Appeal E174 of 2024) [2025] KEELRC 164 (KLR)
The bottom line
#Kenya's Employment Court in Mombasa set aside a default judgment because the company was never properly served with summons, giving it a chance to defend the claim.
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 appellant was served with summons to enter appearance in the trial court
- 2.Whether the judgment of 25 May 2023 was regular or irregular
- 3.Whether the trial court's ruling of 16 August 2024 dismissing the application to set aside the judgment was erroneous
- 4.Whether the appellant should be allowed to defend the claim on the merits
Key legal issues
#Whether there was proper service of summons on the appellant
There was no service of summons upon the appellant; the affidavits of service were deficient and service was not effected at the appellant's registered offices as the 2016 ELRC Procedure Rules required.
The court examined the affidavits of service by Gordon Odhiambo Onyango and found they did not establish service at the appellant's registered offices. The process server only suggested attendance along Nyerere Avenue, an expansive 2.7 km street, and the person described as 'secretary' was not shown to be an officer of the appellant. Service by post pursuant to a court direction lacked any record of the postal address used. The appellant, a corporate entity, was therefore never properly served.
Whether the trial court erred in dismissing the application to set aside the irregular judgment
The trial court failed to take into account that the appellant was not served with summons, which was the primary consideration; matters of prejudice were secondary.
As a first appeal, the court re-evaluated the entire record. It found that because the judgment was irregular (no service), the trial court should have zeroed in on that fact. The attached draft response demonstrated a plausible response raising triable issues, and the appellant, condemned unheard contrary to Article 50(1) of the Constitution, deserved a hearing on the merits with no prejudice to the respondent.
Legal principles established
#- A judgment entered against a respondent who was not served with summons is irregular and should be set aside where a good response exists, so the parties may be heard on the merits.
- Service on a corporate entity must be effected at its registered offices in accordance with the applicable procedural rules.
Court orders
#- 1.The ruling delivered on 16 August 2024 in Mombasa CMELRC E112 of 2021 is set aside together with all consequential orders thereto
- 2.The judgment delivered on 25 May 2023 is set aside
- 3.The appellant is allowed to file its response to the respondent's claim
- 4.Parties shall revert to the trial court to take hearing directions
- 5.Each party bears its costs
- 6.Mention before the trial court on 12 February 2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court (Mombasa CMELRC E112 of 2021, subordinate court)
- Mombasa CMELRC E112 of 2021
- Jurisdiction invoked
- First appeal from the subordinate court (ELRC); the court states 'This is a first appeal, and the court is allowed to reevaluate the entire record and independently analyze the findings with conclusions.'
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.
Accordingly, the appeal is with merit. The ruling delivered on 16 August 2024 in Mombasa CMELRC E112 of 2021 is hereby set aside together with all consequential orders thereto.
This afiects the judgment delivered on 25 May 2023, which is set aside to allow the appellant to file its response to the respondent's claim.
On the record, there is no reply to the application dated 20 March 2024.
On this basis, each party bears its costs.
Issues in the judgment
#The judgment states the trial court ruling was delivered on 16 August 2024 but elsewhere the appellant's submissions describe the application as 'dismissed on 16 August 2024' and elsewhere refer to a ruling 'delivered on 20 March 2024' being set aside, creating internal inconsistency in dates.
The affidavit of service is described as dated/filed 21 April 2021 while recounting service on 24 February 2021, and another affidavit is described as instructed to serve on 15 September 2021; dates of the affidavits of service are inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masscon Construction Company Limited v Emojong (Appeal E174 of 2024) [2025] KEELRC 164 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/164/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.