Mbugua v Stempma Enterprises Limited; Tovuti Group Limited (Interested Party) (Petition E016 of 2024) [2025] KEELRC 2371 (KLR)

TOVUTI GROUP LIMITED ................................................... INTERESTED PARTY RULING Introduction 1. This ruling relates to the respondent’s Notice of Motion dated 10th March 2025, seeking the following orders: a. That this application be certified urgent and heard ex-parte in the first instance. b. That this Honourable court be pleased to set aside and/or vary the ex-parte orders issued on 12th February 2025. c. That the Respondent/Applicant be granted leave to file a response to the application dated 23rd January 2025, and be heard on merit. d. That pending the inter partes hearing and determination of this application, there be a stay of execution of the ex-parte orders issued on 12th February 2025. e. That the costs of this application be in the cause. 2. The motion is supported by Afidavit sworn on 10th March 2025 by the respondent’s sole Director Mr.Stephen Njenga Karanja and it is opposed by the Petitioner vide his replying Afidavit sworn on 11th March 2025. 3. In brief, the applicant’s case is that the impugned orders were granted without it being given an opportunity of being heard and as it was not served with the court process. It contends that the orders granted exposes it to financial and reputational damage. Further, the orders infringe its clients’ right to privacy and they are unconstitutional. It further averred that there is no evidence to prove that the phone number +254717272422 belongs to the petitioner. 4. The petitioner on the other hand contended that the respondent was duly served with pleadings and the Notice of motion dated 23rd January 2025 vide email babatasha2016@gmail.com and phone number +254707665734. He produced copy of CR-12 dated 5th December 2024 to prove that the said contacts belong to the respondent. He also attached copy of the Afidavit of service dated 29th January 2025 sworn by his Advocate who had efiected the service on the respondent. He contended that the information sought is necessary in prosecuting his petition against the respondent. 5. The motion was disposed of by written submissions. I have considered the motion, Afidavits and the submissions. The issue for determination is whether the court orders issued on 12th February 2025 should be set aside and the respondent given leave to respond to the petitioner’s motion dated 23rd January 2025. Analysis 6. The main reason for the instant motion was that the applicant was not served with pleadings leading to the impugned orders and therefore he was not accorded any opportunity to be heard. In addition, the applicant contends that the orders given are unconstitutional and will violate the right to privacy, of the applicant’s clients. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2371/eng@2025-08-13 2

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7. To begin with, the court record is clear that the applicant was served with pleadings and the notice of motion dated 23rd January 2025. The court considered the Afidavit of Service dated 29th January 2025 before granting the impugned orders. The Afidavit of service has not been challenged. Rule 28(1) of the ELRC Procedure Rules, 2024 provides for several methods of service on a corporate body including: “ (v) sending the pleadings by electronic mail to the known email address of the corporate body.” 8. The applicant has also not denied that the email and the phone number used to efiect service belonged to it or its sole Director. Even if there was denial, the CR-12 from the Company Registry would prove the applicant wrong. In the circumstances, I find that the applicant was duly served with the Notice of motion dated 23rd January 2025 and it failed to respond and attend court on 12th February 2025 for hearing. I further find that, the allegation that the orders were made without the applicant being accorded opportunity to be heard is factually wrong. 9. As regards the alleged breach of clients’ right to privacy, it has not been shown that the same will happen since every transaction done using the petitioner’s phone is not confidential information as between the respondent and the clients. Otherwise, why did the respondent use petitioners’ personal number instead of the director’s number or company’s private phone number? 10. The Notice of motion dated 10th March 2025 obviously lacks merits. In the circumstances, I dismiss it with costs. DATED, SIGNED AND DELIVERED AT NYERI THIS 13TH DAY OF AUGUST, 2025. ONESMUS N MAKAU JUDGE ORDER This judgment has been delivered to the parties via Teams video conferencing with their consent, having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. ONESMUS N MAKAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2371/eng@2025-08-13 3

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