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ELRCAllowedNot stated in the extract provided· [2025] KEELRC 597 (KLR)

Naliaka v Diamond Trust Bank Kenya Limited (Cause E059 of 2021) [2025] KEELRC 597 (KLR)

Employment and Labour Relations Court
28 February 2025
JRJames Rika
581 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court cancelled a Kshs 1.5 million default judgment because legal documents were emailed to a wrong address, confirming that sloppy service cannot stand.

What this practically means

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Executive summary

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The Respondent filed an application dated 17th September 2024 seeking to set aside an ex parte judgment delivered on 11th July 2024, by which the Claimant was awarded a total of Kshs. 1,538,786, comprising compensation for unfair termination and one month's salary in lieu of notice. The Respondent argued that service of the mention and hearing notices was flawed, relying on an undated affidavit of service which indicated that only a mention notice, not a hearing notice, was served. The Claimant opposed, asserting flawless service and contending that the Respondent had failed to provide updated contact information. The Court examined the affidavits of service filed by the Claimant's Advocate, Francis Makori Omenta, and found that while the Respondent's Advocates had given their e-mail addresses in the Memorandum of Appearance dated 15th December 2021 (including legal@oraro.co.ke), service was effected at legal@oraroco.ke - an incorrect address. The Court further noted that the undated affidavit of service indicated the matter was coming up for mention, not hearing, creating inconsistencies that would have prevented even a correctly addressed recipient from receiving proper notice. Applying Rule 26 of the E&LRC (Procedure) Rules, which requires service to be sent to the Respondent's last confirmed and used e-mail, the Court found service flawed. The application was allowed, the ex parte judgment was set aside, and the Claim was ordered to be heard afresh on a date to be fixed at the Registry, with no order as to costs.

Key legal issues

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01

Whether service of hearing notices was properly effected by electronic mail

Holding

Service was flawed: the Claimant's Advocate used an incorrect e-mail address and the affidavit of service disclosed inconsistencies between a mention notice and a hearing notice

Reasoning

The Respondent's Advocates gave their e-mail addresses in the Memorandum of Appearance dated 15th December 2021, one of which was legal@oraro.co.ke. The Claimant's Advocate served notices at legal@oraroco.ke, an incorrect address. Rule 26 of the E&LRC (Procedure) Rules 2024 requires service at the Respondent's last confirmed and used e-mail. The undated affidavit of service also indicated a mention, not a hearing, compounding the defect. Service was therefore flawed and the ex parte judgment could not stand.

p. 2

Legal principles established

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  • A summons sent by electronic mail must be sent to the Respondent's last confirmed and used e-mail address
  • Service at an incorrect e-mail address, compounded by an inconsistent affidavit of service, is flawed service

Court orders

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  1. 1.The application dated September 17, 2024 filed by the Respondent is allowed
  2. 2.Ex-parte Judgment made on July 11, 2024 is set aside
  3. 3.The Claim shall be heard afresh, on a date to be fixed at the Registry
  4. 4.No order on the costs
Jurisdiction invoked
Inherent jurisdiction to set aside ex parte judgment; Employment and Labour Relations Court (Procedure) Rules, Rule 26

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, "Naliaka v Diamond Trust Bank Kenya Limited (Cause E059 of 2021) [2025] KEELRC 597 (KLR)", Case Analysis (2025). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/597/eng@2025-02-28

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