Kudheiha Workers v BOM Dr Babla Diani Girls Secondary School (Cause E090 of 2024) [2025] KEELRC 2355 (KLR)
The bottom line
#A Kenyan school lost its bid to overturn a default judgment because it was properly served and simply failed to defend itself.
What this practically means
#Executive summary
#Key legal issues
#Whether the default judgment of 23 January 2025 was irregular for want of service on the Office of the Attorney General
The judgment was regular: there was proper service of summons on the respondent on 26 September 2024, evidenced by unchallenged Affidavits of Service, and service on the Attorney General was not mandatory.
The court applied the Remco Ltd principles distinguishing irregular default judgments (set aside ex debito justitiae) from regular ones (set aside in discretion). The respondent did not deny service on itself; only the Office of the Attorney General was allegedly not served. The Affidavits of Service were not challenged. The respondent, as the primary party, had the duty to attend and ensure the Attorney General acted for it; that burden cannot be placed on the claimant.
Whether the respondent satisfied the grounds for review under Rule 74 of the ELRC (Procedure) Rules
No sufficient cause for review was demonstrated; the application did not even address Rule 74, on which it was premised.
Review requires discovery of new and important matter, an error on the face of the record, or sufficient reason. Apart from the complaint about non-service on the Attorney General, the respondent identified no error or new matter. The court noted that Rule 74 of the Court Rules, upon which the application was premised, was not addressed at all in the submissions and supporting material.
Whether leave should issue to file a response out of time and have the suit heard afresh
Leave was refused because no draft response was exhibited and no plausible defence was suggested; the application was a tactic to stall execution.
The supporting affidavit of the principal did not annex a draft response, so the court could not assess whether any defence existed. The respondent had been served, took no steps, and only moved after being served with judgment, prompting the court to conclude the sole purpose was to frustrate execution, amounting to abuse of the court process.
Legal principles established
#- Where there is no proper service of summons, the resulting default judgment is irregular and must be set aside as a matter of right; where the default judgment is regular, the court has an unfettered discretion to set it aside on such terms as are just, the main concern being to do justice between the parties
- A party served with summons bears the primary duty to attend court and defend itself, and cannot shift responsibility for ensuring the Attorney General appears onto the claimant
- The court may review its orders upon discovery of new matter, an error on the face of the record, or sufficient reason
- Service on a public institution directly is permissible under Rules 26 to 29 of the ELRC Procedure Rules; there is no absolute requirement that service be effected through the Attorney General
Court orders
#- 1.The application dated 25 April 2025 is dismissed
- 2.The respondent shall pay costs of the application to the claimant
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court (Procedure) Rules, including Rule 74 (review), invoked by the respondent's application under Order 10 rule 11 and Order 12 rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kudheiha Workers v BOM Dr Babla Diani Girls Secondary School (Cause E090 of 2024) [2025] KEELRC 2355 (KLR)", Case Analysis (2025). Cause No E090 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2355/eng@2025-08-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.