Edwin Kiplagat Bett v Al-Barakat Agency Limited & another
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd Respondent was duly served with the suit
- 2.Whether Ngonze & Ngonze Advocates represented the 2nd Respondent
- 3.Whether the application to reopen the case has merit
Key legal issues
#Validity of service on the 2nd Respondent
Service was defective: documents were left with a receptionist and stamped only by the 1st Respondent, a separate legal entity, so service on one company was not service on the other.
The process server's own affidavit admitted that only Al-Barakat received and stamped the documents, on the assumption that the two companies worked as one. The acknowledgment stamp belonged exclusively to the 1st Respondent; the two are separate legal entities, so receiving process via one did not constitute valid service on the other.
Whether the 2nd Respondent was represented and participated in the proceedings
Although no notice of appointment named the 2nd Respondent, a joint Response, witness statement and evidence were filed and tendered on behalf of both respondents, and the 2nd Respondent never complained of want of instructions.
The court found the claim of discovering the suit by chance in the cause list incredible. There was no correspondence between P.N. Mashru and Ngonze & Ngonze disputing the firm's representation. The joint response was never struck out or disowned, and the claimant reasonably proceeded to trial believing both respondents had a joint defence.
Whether the case should be reopened
A full reopening as sought was refused as prejudicial, but a limited reopening was granted to allow the 2nd Respondent to cross-examine the claimant and DW1, because service on the 2nd Respondent was defective.
The draft response raised nothing new beyond the joint response already on record; both parties shared a commonality of defence. Reopening afresh would set back the claimant's progress and give an unfair advantage. However, the admitted defect in service justified a limited reopening for cross-examination only, with proceedings otherwise intact.
Legal principles established
#- A party who participates in proceedings through counsel, with pleadings filed in its name that are never disowned, cannot later complain of defective service; any irregularity is waived by pleading and taking part without protest.
- The discretion to reopen a case must be exercised judiciously and will not be allowed where it would embarrass or prejudice the opposite party, fill gaps in evidence, or is driven by inordinate unexplained delay.
- Where a party claims its advocate acted without authority, that grievance lies against the advocate, not as a basis for reopening concluded proceedings.
Court orders
#- 1.Proceedings in the case shall not be set aside; they remain intact
- 2.The cause is reopened for the limited purpose of allowing the 2nd Respondent, through its own advocate, to further cross-examine the claimant and the 1st Respondent's witness Ismail Mohammed (DW1) as may be necessary
- 3.Leave declined for any response to claim and witness statements to be filed by the applicant
- 4.No new documentary evidence will be admitted
- 5.Parties to file submissions thereafter
- 6.Costs of the application awarded to the claimant against the respondents
- 7.Matter to be mentioned on 22/10/2026 for directions
- 8.Leave to appeal granted within 30 days of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment causes; application anchored on Article 50(1) and Article 159(2) of the Constitution and the court's discretionary power to reopen a case
Relief refused
#Setting aside of the proceedings and retrial of the case afresh
A full reopening would be prejudicial to the claimant; the joint response and DW1's evidence already raised the defence now sought to be pleaded
Leave to file a separate Response to the claim and witness statements
The draft response attached raises nothing new beyond the joint response already on record
Admission of new documentary evidence
No new documentary evidence was warranted
Costs
Costs of the application awarded to the claimant against the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The two respondents are separate legal entities, thus serving or receiving court process via one does not constitute valid service on the other.
In the interest of justice, in order to allow the applicant to bring out any facts that may bolster its position that it never employed the claimant and that claimant was employed by the 1st respondent, this court will allow reopening of the cases for the limited purpose of granting 2nd respondent opportunity to cross examine the claimant and the 1st respondent's witness DW1.
Proceedings in this case were regularly taken and therefore shall not be set aside.
The situation that exists is by reason of the respondent's own doing. Cost of this application are awarded to the claimant against the respondents.
Parties are bound by their pleadings and there is that pleading on behalf of P.N Mashru, whether it was filed without instructions or not, that is a question that now will lie elsewhere and maybe a question for professional conduct as between client and advocate.
Issues in the judgment
#Chronology internally inconsistent: claim filed 17th October 2024 but hearing dated 26th February 2026 and submissions dated September 2026 described as already filed.
Court title mismatch: cause styled before Senior Principal Magistrate's Court but signature reads Principal Magistrate.
Duplicated submission passages appear verbatim in consecutive paragraphs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edwin Kiplagat Bett v Al-Barakat Agency Limited & another", Case Analysis (2026). Employment & Labour Relations Cause No. E040 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/955/eng@2026-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.