Watchdog Limited v Obwege & 6 others (Civil Appeal E145 of 2023) [2025] KEELRC 241 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Failure to determine the Notice to Produce and Cross-examine the deponent of the affidavit of service
The trial court erred in failing to address the merits of the notice, which it had itself directed parties to submit on
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.
Doubtful service of summons and absence of hearing notices
Service of summons was doubtful and no hearing notices were served; the appellant was denied a reasonable opportunity to be heard
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.
Duty of a first appellate court
The appellate court must reconsider and evaluate the evidence itself and draw its own conclusions, subject to the absence of advantage of seeing witnesses
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.
Legal principles established
#- 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
#- 1.The Ruling delivered on 14th July 2023 by Honourable Ruguru N. (SPM) is set aside in its entirety
- 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.The Appellant to file its Memorandum of Response to the Respondents' Memorandum of Claim and the suit be heard de novo
- 4.Each party to bear own costs in the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.