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ELRCDismissedCause No E657 of 2022· [2025] KEELRC 1115 (KLR)

Mbego v Tamani Construction Company Limited (Cause E657 of 2022) [2025] KEELRC 1115 (KLR)

Employment and Labour Relations Court
4 April 2025
1,393 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi, delivered on 4th April, 2025 by Agnes Kitiku Nzei, J, on the Respondent's Notice of Motion dated 15th October, 2024. The Claimant had sued for employment-related relief and obtained judgment by formal proof on 13th March, 2024, awarding Kshs.275,985, costs and interest, plus a certificate of service. Costs were taxed at Kshs.72,745 and execution via Mayfair Auctioneers was underway, with property valued at Kshs.50,000,000 proclaimed for a decretal sum of about Kshs.367,781. The Respondent then sought, inter alia, to enjoin the auctioneer, stay execution, set aside the judgment and leave to file a response, alleging it was never served with summons or hearing notice and that the Claimant was not a permanent employee. The court found the affidavits of service uncontroverted: the Respondent neither denied employing the persons who accepted service nor questioned the signature on the returned hearing notice, and never sought cross-examination of the deponents. Applying Kingsway Tyres (as cited in Tree Shade Motors), the onus lay on the Respondent to fault service and having failed, the ex-parte judgment was regular. The draft response raised no triable issue, containing mere denials, and the Respondent admitted employing the Claimant. The prayer to enjoin the auctioneer was described as strange, an auctioneer being merely the decree holder's agent. The application was dismissed with costs.

Key legal issues

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01

Whether the judgment of 13th March, 2024 should be set aside for alleged non-service

Holding

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.

Reasoning

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.

p. 3
02

Whether Mayfair Auctioneers should be enjoined to the suit

Holding

Declined - an auctioneer executing a court decree is not a necessary party.

Reasoning

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.

p. 3
03

Whether the Claimant was on independent contractual terms rather than employment

Holding

The allegation was without substance as no such contracts were exhibited.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Prayer (b) seeking to enjoin Mayfair Auctioneers as a party declined
  2. 2.Prayer (c) for stay of execution - interim stay had already been granted on 28th October, 2024
  3. 3.Prayer (d) for setting aside of the Judgment dated 13th March, 2024 declined
  4. 4.Prayer (e) for leave to file Response declined
  5. 5.The Notice of Motion dated 15th October, 2024 dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActVarious provisions relied on in the application (not specified)
  • Civil Procedure RulesVarious provisions relied on in the application (not specified)

Cases cited (2)

  • Kingsway Tyres and Automart Rafiki Enterprises Ltd (Civil Appeal No. 220 of 1995)
  • Tree Shade Limited – vs – D.T. Dobie And Company Limited & Another
    [1998] eKLR
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

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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, "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.