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ELRCAllowedNot stated in the judgment· [2025] KEELRC 2004 (KLR)

Maganga v Jenebys Enterprises Limited (Cause E021 of 2024) [2025] KEELRC 2004 (KLR)

Employment and Labour Relations Court
8 July 2025
MMM. Mbarũ
789 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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In an employment claim at the Employment and Labour Relations Court, Malindi, the respondent, Jenebys Enterprises Limited, applied by a notice dated 11 April 2025 for a stay of execution, setting aside of the interlocutory judgment entered on 25 April 2024, and unconditional leave to file a response. Through Salim Jeneby, it contended that the Memorandum of Claim dated 18 March 2024 and summons were never served on any director, that the Afidavit of Service sworn by Peter Simiyu and dated 4 April 2024 was incorrect, and that it only learned of the judgment when auctioneers served a proclamation notice. The claimant maintained that service was effected on the director, Said Jenebys, at Shell Petrol Station–Makupa, that hearing notices were served, and that the judgment was regular. The court found the Afidavit of Service fatally defective: it was commissioned on 4 April 2024 yet recorded service on 5 April 2024, meaning service could not have preceded its swearing. The court concluded the returns were deliberately manipulated to fabricate proof of service, denying the respondent a fair hearing. Noting the respondent's attached draft Memorandum of Response as evidence of readiness to defend, the court allowed the application conditional on the security deposit: the interlocutory judgment was set aside, the respondent to file and serve its response within 14 days, the claimant to respond within a further 14 days, pleadings to close within 30 days, and a hearing date to be allocated. No costs order was made.

Key legal issues

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01

Validity of service of summons

Holding

Service was invalid; the Afidavit of Service was internally contradictory as it purported to record service on 5 April 2024 yet was commissioned on 4 April 2024, indicating fabrication.

Reasoning

The court examined the Afidavit of Service dated 4 April 2024 which stated that service was effected on 5 April 2024. Since the affidavit was sworn before the date of the alleged service, service could not have occurred as claimed. The court found the returns were deliberately manipulated to create a false impression of proper service, denying the respondent notice and a fair hearing.

p. 2
02

Whether the interlocutory judgment should be set aside

Holding

The judgment was set aside conditional on the security deposit, with leave granted to the respondent to file its response.

Reasoning

Because service was flawed, the respondent was condemned unheard. The respondent demonstrated readiness and intention to defend by attaching a draft Memorandum of Response. Guided by fair-trial principles and sufficient cause, the court exercised its discretion to set aside the irregular interlocutory judgment and allow the matter to proceed to a hearing on the merits, subject to the security deposit.

p. 2

Legal principles established

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  • Service of summons and pleadings is essential to give the other party notice and an opportunity to respond.
  • Where service of summons is flawed or fabricated, the court has discretion to set aside an interlocutory judgment to afford the respondent a fair hearing on the merits.

Court orders

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  1. 1.The application is allowed based on the security deposit herein
  2. 2.Judgment herein is set aside
  3. 3.The respondent shall file and serve the response within 14 days
  4. 4.Upon service, the claimant shall be at liberty to file a response within 14 days
  5. 5.Pleadings to close within the next 30 days
  6. 6.A hearing date shall be allocated
Jurisdiction invoked
Original employment and labour relations jurisdiction; inherent discretion to set aside interlocutory judgment entered without proper service

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, "Maganga v Jenebys Enterprises Limited (Cause E021 of 2024) [2025] KEELRC 2004 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2004/eng@2025-07-08

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