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ELRCDismissedNot stated in judgment (Cause referred to only as 'the Cause')· [2025] KEELRC 350 (KLR)

Wahu v South Sioux Farms Ltd & another (Cause 2594 of 2016) [2025] KEELRC 350 (KLR)

Employment and Labour Relations Court
13 February 2025
1,386 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that ignoring court emails and notices is not a fair hearing violation, so the government office must pay the damages awarded.

What this practically means

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Executive summary

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This Ruling determines a Motion dated 2 October 2024 by the Director of Public Prosecutions (2nd Respondent) seeking a stay of execution, setting aside of the judgment delivered on 20 September 2023 by Nzioki wa Makau J (which awarded the Claimant Kshs 2,500,000/- for malicious prosecution and aggravated damages against both Respondents jointly and severally, twelve months' salary compensation against the 1st Respondent for unlawful and unfair dismissal, costs, and interest), enlargement of time to file witness statements and leave to defend. The 2nd Respondent argued that the hearing notice was served through an inactive email address (cl@ag.go.ke), that its right to a fair hearing was breached, that leave was required to enter judgment against the Government under Order 10 Rule 8 of the Civil Procedure Rules and section 25(1) of the Government Proceedings Act, and that the Bill of Costs was not served. The Claimant countered that service was effected through the Respondent's official website emails, none of which bounced back; that the Court was satisfied with service before hearing; that the Respondent ignored pre-trial processes despite physical service; and that the judgment was regular. The Court held that service was valid: the Respondent had not denied ownership of the email used, had failed to notify the Court and parties of its addresses even after the Electronic Service Rules took effect in 2020, and had been physically served with the Claimant's submissions on 14 July 2023 and with mention notices, none of which it acted on. A party that fails to comply with rules meant to ensure equality of arms cannot claim a fair hearing breach. The Motion was dismissed with costs to the Claimant.

Key legal issues

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01

Validity of electronic service of the hearing notice

Holding

Service through the email address cl@ag.go.ke taken from the 2nd Respondent's website was valid service; the 2nd Respondent had not denied the address belonged to it and had failed to notify the Court and parties of its correct addresses after the Electronic Service Rules came into effect.

Reasoning

The Civil Procedure (Amendment) Rules 2020 introduced electronic service requiring use of a defendant's last confirmed and used email address. The 2nd Respondent never notified the Court or the Claimant of any change of address or of its full addresses. The Claimant extracted the email from the Respondent's website and served the hearing notice; none of the emails bounced back. The Court also noted physical service of the Claimant's submissions on 14 July 2023, which should have alerted the Respondent to the progress of the matter.

p. 3
02

Alleged breach of the right to a fair hearing and need for leave under Order 10 Rule 8 and section 25(1) of the Government Proceedings Act

Holding

No breach of fair hearing occurred; the Respondent's failure to file witness statements with its Response or seek leave, and its non-attendance at pre-trial sessions, meant the judgment was regular and leave was unnecessary.

Reasoning

The Employment and Labour Relations Court (Procedure) Rules, 2016 required a Respondent to file and serve witness statements with the Response. The 2nd Respondent did neither, nor sought leave, demonstrating no intention to call evidence. It was also repeatedly served with mention notices for pre-trial directions but failed to attend. Its own inaction, including being physically served with the Claimant's submissions before judgment, belied its claim that it only discovered the judgment later. Having ignored the rules ensuring equality of arms, it could not invoke fair hearing rights.

p. 4

Legal principles established

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  • Where a party fails to notify the Court and other parties of its full addresses, service through an email address extracted from its own website is valid service
  • A party that does not comply with procedural rules meant to ensure equality of arms cannot later claim breach of its right to a fair hearing

Court orders

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  1. 1.The Motion dated 2 October 2024 is dismissed with costs to the Claimant
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016; Civil Procedure Rules (review and setting aside jurisdiction)

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, "Wahu v South Sioux Farms Ltd & another (Cause 2594 of 2016) [2025] KEELRC 350 (KLR)", Case Analysis (2025). Not stated in judgment (Cause referred to only as 'the Cause'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/350/eng@2025-02-13

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