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ELRCDismissedNotice of Motion dated 9th December 2024 (ruling in appeal, ELRC Nyeri)

Ngoci v Broadview Security Limited (Appeal E038 of 2022) [2025] KEELRC 2373 (KLR)

Employment and Labour Relations Court
14 August 2025
OMONESMUS N MAKAU
877 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 that ignored court papers both at trial and on appeal lost its bid to set aside the judgment and stay execution, with costs.

What this practically means

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Executive summary

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This ELRC Nyeri ruling by Onesmus N Makau J disposes of a Notice of Motion dated 9th December 2024 by the respondent in an appeal, supported by an affidavit of its HR Manager, Hawa Guyo, and opposed by the appellant. The applicant sought certification, leave for new advocates to come on record, stay of execution of the judgment/decree of 8th March 2024, setting aside of that judgment and of the trial court proceedings, and an order allowing it to prosecute its case in the trial court. The applicant claimed it was unaware of the proceedings until served with execution documents on 29th November 2024, having been told the appellant intended to withdraw the suit. The appellant countered that service in the lower court was admitted, that no defence was filed, that the appeal was also served, and that no irreparable harm was demonstrated. The court found the explanation of ignorance of proceedings unmerited, held the trial court judgment regular following admitted service, noted that the award had been upheld on appeal, and held that the procedure used to challenge the trial court judgment before the ELRC was faulty. On the appeal judgment, the court found valid service of the record of appeal and hearing notice on Dorothy Kajuju, the applicant's secretary, on 3rd March 2023, which was not denied, and held the applicant had deliberately waived its right to be heard. The motion was dismissed with costs on 14th August 2025, delivery being via Teams with consent and waiver of Rule 28(3) of the ELRC Procedure Rules.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the application should be allowed

Key legal issues

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01

Whether the application for setting aside and stay should be allowed

Holding

The application failed; the applicant was served in the lower court and on appeal, and deliberately waived its right to be heard

Reasoning

Service of summons and initial pleadings in the lower court was admitted, so the default judgment was regular. The appeal was served on the applicant's secretary Dorothy Kajuju on 3rd March 2023, which the applicant did not deny. The explanation of ignorance of proceedings was unsupported, and the procedure to challenge the trial court judgment before the ELRC on appeal was faulty. The motion was therefore dismissed with costs.

p. 3
02

Whether the applicant was duly served with the record of appeal and hearing notice

Holding

Service on Dorothy Kajuju, the applicant's secretary, on 3rd March 2023 was valid and unchallenged

Reasoning

The applicant did not deny having an office at the address in the affidavit of service nor that Dorothy Kajuju was its secretary on 3rd March 2023. Before proceeding ex parte the court had confirmed service. The allegation that the appellant intended to withdraw the suit was unsupported by documentary evidence.

p. 2

Legal principles established

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  • A party served with summons and pleadings who enters appearance but takes no further steps is deemed aware of the proceedings, and the resulting default judgment is regular.
  • Valid service of a record of appeal and hearing notice on a party's secretary at its office waives that party's right to be heard.

Court orders

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  1. 1.Notice of motion dated 9th December 2024 dismissed with costs
  2. 2.Leave applications, stay of execution, and setting aside of the trial and appellate judgments/decree refused

The bench

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One judgment of the whole court — no separate or dissenting opinions.

OM
majority

Wrote the judgment

Jurisdiction invoked
not stated in the ruling; ELRC Procedure Rules (Rule 28(3)) referenced

Relief refused

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Stay of execution of the judgment/decree dated 8th March 2024

The lower court judgment was regular as service was admitted, and the award was upheld on appeal

p. 2

Setting aside of the trial court judgment and proceedings

The procedure adopted to challenge the lower court judgment before the court was faulty

p. 2

Setting aside of the judgment in the appeal

Applicant was duly served with the record of appeal and hearing notice and deliberately waived its right to be heard

p. 2

Costs

Notice of motion dismissed with costs to the appellant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In view of the fact that service of summons and initial pleadings was admitted, I find that the lower court judgment was regular.
p. 2regularity of default judgment after admitted service
Consequently, I find and hold that the applicant was duly served with both the Record of Appeal and a hearing notice and deliberately waived its right to be heard on the appeal as it did in the lower court.
p. 2waiver of right to be heard
In conclusion, and for the reasons highlighted above, I find no merits in the notice of motion dated 9TH December 2024 and dismiss it with costs.
p. 3disposition

Issues in the judgment

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minor

The ruling inconsistently labels the movant as both 'respondent' (Notice of Motion) and 'Applicant/Respondent', while the opposing party is called 'appellant' despite no appellate challenge being described against the motion

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, "Ngoci v Broadview Security Limited (Appeal E038 of 2022) [2025] KEELRC 2373 (KLR)", Case Analysis (2025). Notice of Motion dated 9th December 2024 (ruling in appeal, ELRC Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2373/eng@2025-08-14

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