Mbego v Tamani Construction Company Limited (Cause E657 of 2022) [2025] KEELRC 1115 (KLR)
The bottom line
#A Kenyan employer lost its bid to overturn a default employment judgment because it couldn't prove it was never served, and now faces costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 13th March, 2024 should be set aside for alleged non-service
The prayer was declined because the Applicant failed to rebut the detailed affidavits of service proving service of summons and hearing notice on the Respondent.
The court noted there were detailed affidavits of service by an advocate and a process server demonstrating service on 28th September, 2022 and 7th November, 2023. The Applicant did not controvert these, did not deny employing the persons who accepted service, did not question the signature on the returned hearing notice, and never sought to cross-examine the deponents. The draft response raised no triable issues, containing mere denials. The Court of Appeal authority in Kingsway Tyres (cited in Tree Shade Motors) was applied, placing the onus on the party alleging improper service.
Whether Mayfair Auctioneers should be enjoined to the suit
Declined - an auctioneer executing a court decree is not a necessary party.
The court described the prayer as strange, holding that an auctioneer's duty is to execute a decree in a concluded suit; he is merely the decree holder's agent, licensed by the court to execute its decrees and orders, and therefore need not be joined to the suit.
Whether the Claimant was on independent contractual terms rather than employment
The allegation was without substance as no such contracts were exhibited.
The Applicant alleged the Claimant was never a permanent employee and had deserted the project site, but produced no written independent contracts. Indeed, the Applicant admitted in paragraphs 13 and 14 of the supporting affidavit that it had employed the Claimant, undermining its defence on merits.
Legal principles established
#- Where service is proved by affidavit and the party served does not fault that service, an ex-parte judgment is a regular judgment which can only be vacated on grounds other than non-service
- An auctioneer executing a decree is the agent of the decree holder and need not be joined as a party to the concluded suit
- Leave to file a defence cannot be granted without first setting aside the default judgment
Court orders
#- 1.Prayer (b) seeking to enjoin Mayfair Auctioneers as a party declined
- 2.Prayer (c) for stay of execution - interim stay had already been granted on 28th October, 2024
- 3.Prayer (d) for setting aside of the Judgment dated 13th March, 2024 declined
- 4.Prayer (e) for leave to file Response declined
- 5.The Notice of Motion dated 15th October, 2024 dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction and provisions of the Civil Procedure Act and Civil Procedure Rules relied upon in the Notice of Motion dated 15th October, 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbego v Tamani Construction Company Limited (Cause E657 of 2022) [2025] KEELRC 1115 (KLR)", Case Analysis (2025). Cause No E657 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1115/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.