Grace Muthoni Chomba v Legacy Dental Clinic Limited
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Regularity of the default judgment and validity of service
The judgment was regular; service was properly effected by physical delivery to the Respondent's director on 31st January 2025 pursuant to court directions, the earlier email service having been rejected by the court.
The court had on 11th December 2024 and 20th January 2025 ordered fresh physical service after rejecting email service. An affidavit of service dated 3rd February 2025 by process server Dickson Ooko Giani showed physical delivery on 31st January 2025. The Respondent did not deny this specific service nor seek to cross-examine the process server, so the claimant's evidence of service remained uncontroverted and the challenge based on email service was misconceived.
Whether the failure to defend was excusable
No; the Respondent offered no explanation for failing to enter appearance after proper physical service.
A regular default judgment may still be set aside in the discretion of the court where the failure to defend stems from inadvertence or excusable mistake. Here the Respondent gave no explanation for its inaction after 31st January 2025 and instead attacked the rejected email service. The discretionary basis for setting aside was therefore not made out.
Whether the draft defence discloses a reasonable defence
No; the defence rests on a mistaken view of casual employment and bare denials.
The proposed defence was that the claimant was a casual engaged for under three months and thus not an employee. The court held that sections 2 and 37 of the Employment Act recognise casual labourers as employees and convert engagements exceeding one month into indefinite contracts. The remainder of the draft defence comprised general denials, which are not a proper defence.
Legal principles established
#- A default judgment obtained without proper service is irregular and must be set aside as of right; one obtained after proper service is regular and setting it aside is discretionary.
- There is a presumption of service from a process server's affidavit; the party denying service should put the process server to cross-examination.
- Section 37 of the Employment Act converts a casual engagement lasting more than one month into an indefinite employment contract, so casual engagement is no defence to an employment claim.
- A defence consisting of general denials is not a proper defence.
Court orders
#- 1.The application dated 29th June 2026 is dismissed
- 2.The judgment delivered on 26th September 2025 is upheld
- 3.Costs of the application are granted to the Claimant
- Jurisdiction invoked
- First-instance employment and labour relations jurisdiction of the ELRC (Employment and Labour Relations Court Act); judgment entered on formal proof now sought to be set aside
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Muthoni Chomba v Legacy Dental Clinic Limited", Case Analysis (2026). ELRC Cause No E6588 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2774/eng@2026-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.