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Court of AppealPartially AllowedAppeal from Kisumu Employment & Labour Relations Court Cause No. 373 of 2017 Moses Oloo Miseh v Migori County Assembly Service Board

Migori County Assembly Service Board v Misee (Civil Appeal 90 of 2019) [2024] KECA 1683 (KLR)

Court of Appeal of Kenya
22 November 2024
2,715 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that serving the wrong county entity invalidates a judgment, and Migori County Assembly Service Board got a fresh chance to defend itself.

What this practically means

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Executive summary

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The respondent, Moses Oloo Misee, obtained an ex parte judgment of Kshs.2,155,479 against the Migori County Assembly Service Board in the Employment and Labour Relations Court (Nderi, J) for unpaid chaplaincy and counselling allowances, the Board having neither entered appearance nor filed a defence. The Board's application to set aside the judgment, contending it was never served with summons to enter appearance, was dismissed on 19th July 2018, the trial judge holding that service on the Clerk to the County Assembly, who is also Secretary to the Board under section 12(4) of the County Governments Act, was proper, and correcting a reference in the judgment to 'Migori County Assembly' as a typographical error. The Board appealed to the Court of Appeal at Kisumu (Okwengu, Omondi and Ngugi, JJ.A), arguing it was condemned unheard. Allowing the appeal ex parte on 22nd November 2024, the Court held that Migori County Assembly and the County Assembly Service Board are distinct legal entities - the former a State organ under Article 176(1) of the Constitution, the latter a body corporate under section 12 of the County Governments Act - so that service on the Assembly, which was not a party to the suit, was erroneous service. The Clerk's dual role did not merge the entities, and the slip rule could not be used to substitute the Board as the party served. The Court set aside the ruling dismissing the Board's motion, allowed it to enter appearance and file a defence within 14 days, and awarded the costs of the appeal to the Board, the issue of the damages award becoming moot.

Questions the Court framed

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

  1. 1.Whether the summons to enter appearance was served on the appellant or its representative
  2. 2.Whether service on Migori County Assembly constituted service on Migori County Assembly Service Board, two distinct legal entities
  3. 3.Whether there was a basis for the award of damages which the respondent did not claim and/or prove

Key legal issues

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01

Whether service effected on Migori County Assembly amounted to service on Migori County Assembly Service Board

Holding

It did not. The two are separate legal persons; the County Assembly Service Board is a body corporate with perpetual succession, and the Clerk's dual role as Secretary to the Board does not make service on the Assembly effective service on the Board.

Reasoning

Migori County Assembly is a State organ established under Article 176(1) of the Constitution, while the County Assembly Service Board is established under section 12 of the County Governments Act as a body corporate with perpetual succession capable of suing and being sued. The Clerk's dual role as Secretary to the Board could not merge the two entities. Process was served on the Assembly, which was not a party to the suit; the Board, the actual defendant, was never served with summons to enter appearance. The trial judge therefore erred in law and fact, and in amending the names under the slip rule, condemned the appellant unheard.

p. 5
02

Whether the trial court could cure the misdescription of the served party by amending the judgment under the slip rule

Holding

It could not. Altering the names of two separate legal entities so as to reflect the County Assembly Service Board instead of the County Assembly, when summons had not been taken out in the Board's name, was an injustice and prejudicial.

Reasoning

The slip rule permits correction of typographical errors, but it cannot be used to substitute a different legal entity as the party served where no summons to enter appearance was ever taken out against that entity. The reference to the Assembly in the judgment reflected the reality that process had been served on the Assembly, not a mere typographical slip. Exploiting the correction to sustain an ex parte judgment against an unserved body corporate denied the appellant its right to be heard.

p. 5

Legal principles established

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  • A county assembly and a county assembly service board are distinct legal entities; service of process on one does not constitute service on the other, and judgment entered without proper service on the party sued must be set aside.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The impugned ruling of the ELRC dated 19th July 2018 dismissing the appellant's Notice of Motion dated 26th March 2018 is set aside
  3. 3.The appellant is allowed to enter appearance and file defence within 14 days from the date of the decision, so that the suit may proceed to trial on merit
  4. 4.The costs of the appeal shall be borne by the respondent

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court
Kisumu Employment & Labour Relations Court Cause No. 373 of 2017 (ruling dated 19th July 2018)
Jurisdiction invoked
First appellate/appeal against ruling of the Employment and Labour Relations Court; no specific constitutional or statutory provision invoking appellate jurisdiction is stated in the judgment

Relief refused

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Determination of the issue regarding damages/award

Became moot once the court resolved the service issue in the appellant's favour

p. 5

Costs

The costs of this appeal shall be borne by the respondent.

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.

Summons to enter appearance were never issued upon the applicant, requiring it to enter appearance at all, nor has the Memorandum of Claim been served upon the applicant as it is evident that the same were served upon Migori County Assembly, which is a difierent entity both in law and in fact, from the County Assembly Service Board
p. 5Distinct legal personality of county assembly and county assembly service board
service on one who is not party to the suit was obviously an erroneous service, which resulted in denying the appellant the opportunity of a just merit hearing and determination of the case; the end result was that the appellant was condemned unheard
p. 5Consequences of improper service - right to be heard
Consequently, we find that the appeal has merit and is allowed. We thus set aside the impugned ruling dismissing the appellant’s Notice of Motion; the appellant be and is hereby allowed to enter appearance and file defence within 14 days from the date of this decision; so that the suit may proceed to trial on merit. The costs of this appeal shall be borne by the respondent.
p. 5Disposition and final orders

Issues in the judgment

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minor

The cause number is rendered inconsistently within the judgment, with the claimant's name appearing as 'Misee' and 'Miseh'

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, "Migori County Assembly Service Board v Misee (Civil Appeal 90 of 2019) [2024] KECA 1683 (KLR)", Case Analysis (2024). Appeal from Kisumu Employment & Labour Relations Court Cause No. 373 of 2017 Moses Oloo Miseh v Migori County Assembly Service Board. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1683/eng@2024-11-22

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