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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 543 (KLR)

Mwania v Child Welfare Society of Kenya (Appeal E040 of 2024) [2025] KEELRC 543 (KLR)

Employment and Labour Relations Court
27 February 2025
680 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 because the employer was never properly served, confirming service must be precise, provable, and on the right party.

What this practically means

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Executive summary

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Child Welfare Society of Kenya (respondent) applied by notice of motion dated 3 December 2024 to set aside an ex parte judgment delivered on 26 September 2024 by the Employment and Labour Relations Court at Mombasa, in which the appellant had obtained an award of Ksh.170,319.60 plus costs and interest. The respondent, through its human resources manager Frabrain Muiruri, asserted it was never properly served with the appeal or notice of judgment and only learnt of the judgment when execution commenced; it maintained the underlying employment claim had already been settled and a discharge form signed. The appellant opposed, relying on an affidavit of service by Meshack Otieno Odera dated 18 June 2024, which recorded service at the respondent's offices at Makupa, Mombasa County, on 10 June 2024, where a secretary refused to acknowledge receipt. Mbarũ J found the description of the place of service vague and ambiguous, noted that the secretary served was not identified, and observed that the appellant's own reply and submissions gave conflicting accounts, suggesting service by email or through the advocates who had acted in the trial court. The court held that service must be effected on the principal party until notice is issued that advocates are appointed for the particular matter, and that the conflicting averments cast doubt on the entire service. The application was allowed and the ex parte judgment of 26 September 2024 set aside, with costs reserved to the outcome of the appeal and the matter to be set down for hearing. The appellant's request that the decretal sum be deposited in a joint interest-earning account was refused as punitive in the absence of proper service.

Key legal issues

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01

Validity of service of the appeal and notice of judgment

Holding

Service was defective; the affidavit of service was ambiguous and conflicting accounts of service cast doubt on the entire service, so the respondent was not properly served.

Reasoning

The process server's affidavit stated he served the respondent 'as its offices at Makupa' within Mombasa County, which the court found too vague to identify the respondent's offices, and the secretary served was not described. The appellant's reply and submissions gave a different account (service by email and through advocates), conflicting with the process server's averment. These conflicting and ambiguous averments undermined the reliability of the service on which the ex parte judgment rested.

p. 2
02

Entitlement to have an ex parte judgment set aside for lack of proper service

Holding

Where a party was not properly served, it is fair and just to set aside the ex parte judgment so the party can be heard.

Reasoning

Section 22 of the Employment and Labour Relations Court Act permits a party to attend in person, through advocates or a representative of choice. Since no proper notice of the appeal had been given to the respondent and service on a party must continue until advocates' appointment is notified, the respondent could not be fixed with knowledge of the proceedings. The court exercised its discretion to set aside the judgment in the interest of a fair hearing.

p. 2
03

Whether conditional deposit of the decretal sum should be ordered

Holding

The condition was refused as punitive given the absence of proper service.

Reasoning

The appellant sought an order that the respondent deposit the judgment sum in a joint interest-earning account as a condition. The court held that imposing such a condition where service was defective would be punitive and unjust. The application was allowed unconditionally, with costs deferred to the outcome of the appeal.

p. 2

Legal principles established

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  • Service of process must be effected upon the principal party until notice is given that advocates have been appointed to act in the particular matter; service on the venue generally is insufficient.

Court orders

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  1. 1.The application dated 3 December 2024 is allowed
  2. 2.The judgment delivered on 26 September 2024 is set aside to allow the respondent to attend and urge its case
  3. 3.Costs to be determined by the outcome of the appeal
  4. 4.The matter to be set down for hearing

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 22
On appeal from
Not stated (lower court / trial court)
Jurisdiction invoked
Employment and Labour Relations Court Act (inherent jurisdiction to set aside ex parte judgment)

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, "Mwania v Child Welfare Society of Kenya (Appeal E040 of 2024) [2025] KEELRC 543 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/543/eng@2025-02-27

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