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ELRCAllowedMemorandum of Appeal dated 7th August 2023 (from Chief Magistrate's Court, Employment and Labour relations matter)· [2025] KEELRC 241 (KLR)

Watchdog Limited v Obwege & 6 others (Civil Appeal E145 of 2023) [2025] KEELRC 241 (KLR)

Employment and Labour Relations Court
31 January 2025
2,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court set aside a default judgment against a company that was never properly served, giving it a fresh full hearing.

What this practically means

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Executive summary

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Watchdog Limited appealed against a ruling by Hon Ruguru N. (SPM) delivered on 14th July 2023 dismissing its application dated 1st August 2022 seeking to set aside a default judgment entered in an employment claim for unlawful termination and terminal dues. The respondents had filed a memorandum of claim in December 2019; the appellant never entered appearance, and judgment was entered ex parte following an affidavit of service recording that documents were left with one 'Munene' who refused to sign. Munene later denied service by affidavit. The appellant filed an application to set aside the default judgment and a Notice to Produce and Cross-examine the deponent of the affidavit of service. The trial magistrate dismissed the application without addressing the notice. On appeal, the ELRC, applying Selle v Associated Motor Boat Co. on the duty of a first appellate court, held that the trial court ought to have determined the Notice to Produce and Cross-examine, which it had itself directed parties to submit on, and that the affidavit of service being the only evidence of service, the appellant should have been allowed to test it. The court found no service of hearing notices on the record, held service of summons doubtful, and concluded the appellant was denied a reasonable opportunity to be heard. Guided by Richard Ncharpi Leiyagu and Philip Chemowolo on the court's aversion to denying parties a hearing on the merits absent fraud or overreach, the court allowed the appeal, set aside both the ruling of 14th July 2023 and the default judgment, and ordered the appellant to file its Memorandum of Response with the suit heard de novo. Each party was to bear its own costs.

Key legal issues

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01

Failure to determine the Notice to Produce and Cross-examine the deponent of the affidavit of service

Holding

The trial court erred in failing to address the merits of the notice, which it had itself directed parties to submit on

Reasoning

The trial court had on 23rd February 2023 directed parties to file submissions on both the application of 1st August 2022 and the Notice to Produce of 25th November 2022. The ruling of 14th July 2023 did not address the notice. Since the affidavit of service was the only evidence of service, failing to allow cross-examination of the deponent undermined the fairness of proceedings and supported setting aside the ruling.

p. 4
02

Doubtful service of summons and absence of hearing notices

Holding

Service of summons was doubtful and no hearing notices were served; the appellant was denied a reasonable opportunity to be heard

Reasoning

The affidavit of service indicated documents were left with one 'Munene' who refused to sign, and Munene later denied service. The record showed claimants' counsel admitted they had not served hearing notice for the pre-trial date, and no evidence of subsequent notices existed. The ex parte hearing and default judgment were therefore procedurally defective, warranting a de novo hearing.

p. 4
03

Duty of a first appellate court

Holding

The appellate court must reconsider and evaluate the evidence itself and draw its own conclusions, subject to the absence of advantage of seeing witnesses

Reasoning

Relying on Selle v Associated Motor Boat Co., the court restated that a first appellate court is not bound by the findings of fact of the court below and must evaluate the evidence afresh, making due allowance for not having seen or heard the witnesses. This framed the court's approach to reviewing the trial magistrate's ruling.

p. 3

Legal principles established

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  • A party should not be deprived of a hearing on the merits for a mistake absent fraud or intention to overreach
  • Where service of summons is doubtful and no hearing notice was served, the defendant was not given a reasonable opportunity to be heard

Court orders

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  1. 1.The Ruling delivered on 14th July 2023 by Honourable Ruguru N. (SPM) is set aside in its entirety
  2. 2.The Judgment in Chief Magistrate's Court delivered on the 22nd October 2021 by Hon A.N. Makau (PM) and any other consequential orders are set aside
  3. 3.The Appellant to file its Memorandum of Response to the Respondents' Memorandum of Claim and the suit be heard de novo
  4. 4.Each party to bear own costs in the appeal

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 20(1)
  • Civil Procedure RulesOrder 19 Rule 2

Cases cited (4)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Paul Odido v Abdul Hakim Abeid & 2 others
    (2021) eKLR
  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others
    [2013] eKLR
  • Philip Chemowolo & another v Augustine Kubede
    [1982-88] KAR 103
On appeal from
Chief Magistrate's Court
Jurisdiction invoked
First appellate jurisdiction from the Chief Magistrate's Court; Employment and Labour Relations Court Act, Section 20(1)

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, "Watchdog Limited v Obwege & 6 others (Civil Appeal E145 of 2023) [2025] KEELRC 241 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 7th August 2023 (from Chief Magistrate's Court, Employment and Labour relations matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/241/eng@2025-01-31

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