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Case Brief · caselaw.co.ke
ELRCDismissedNot stated in extract

Thomas Kimutai Biwott v Kenya Power & Lighting Co. Ltd [2017] KEELRC 2003 (KLR)

Employment and Labour Relations Court
24 November 2017
1,010 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to undo a default judgment against an employer, ruling that serving its regional HR officer counted as proper service.

What this practically means

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Executive summary

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This was a ruling on the Respondent's application dated 17 October 2017 seeking to set aside or review a formal proof judgment of 28 July 2017, in which the Court had found the Claimant's dismissal unfair and awarded him Kshs 1,223,881/56, and seeking unconditional leave to defend. The Cause had proceeded undefended after the Respondent failed to enter appearance or file a response, and the Claimant had commenced execution. The Respondent argued that service of summons and the Memorandum of Claim on its Human Resource and Administration Officer, North Rift, did not comply with Order 5 Rule 3 of the Civil Procedure Rules, and that the 10-day Notice of Entry of Judgment was not served. The Court held that the ELRC (Procedure) Rules, 2016 governed service, and since neither those Rules nor the Civil Procedure Rules define 'principal officer', recourse was had to the Companies Act, 2015 and Black's Law Dictionary. A Human Resource and Administration Officer in a region of a nationally organised entity qualified as a statutory manager, so service was proper under Rule 12. The admitted failure to serve the Notice of Entry of Judgment could not excuse the Respondent's inaction given multiple other notices served and acknowledged. The draft Response raised no triable issues, being bare denials that did not engage the employer's burdens under sections 41, 43 and 45 of the Employment Act. The application was dismissed with costs to the Claimant.

Questions the Court framed

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

  1. 1.Whether service of the Notice of Summons and Memorandum of Claim on the Respondent's Human Resource and Administration Officer, North Rift, was proper service under Rule 12 of the ELRC (Procedure) Rules, 2016
  2. 2.Whether the failure to serve a 10-day Notice of Entry of Judgment justified setting aside the judgment
  3. 3.Whether the draft Memorandum of Response raised triable issues warranting leave to defend

Key legal issues

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01

Proper service of process on a company

Holding

Service on the Respondent's Human Resource and Administration Officer, North Rift, met the letter and spirit of Rule 12 of the ELRC (Procedure) Rules, 2016.

Reasoning

Neither the ELRC Rules nor the Civil Procedure Rules define 'principal officer'. The Court turned to the Companies Act, 2015, which defines 'officer' to include any director, manager or secretary, and to Black's Law Dictionary, which defines an officer as one elected or appointed to manage daily operations. Since a Human Resource Officer handles daily human resource functions including discipline, such an officer in a regionally-organised entity qualifies as a statutory manager for service purposes.

p. 2
02

Effect of failure to serve Notice of Entry of Judgment

Holding

The irregularity of not serving the Notice of Entry of Judgment could not excuse the Respondent's failure to follow up the Cause given the several other notices served and acknowledged.

Reasoning

The 10-day Notice of Entry of Judgment was admittedly not served, but the Respondent had also been served with and acknowledged a hearing notice (25 January 2017), the amended Memorandum of Claim (30 March 2017) and mention notices (7 December 2016 and 14 July 2017). In those circumstances the Respondent could not claim ignorance of the proceedings' progress.

p. 3
03

Triable issues in the draft Response

Holding

The proposed Response raised no triable issues, consisting only of bare denials and putting the Claimant to strict proof.

Reasoning

Sections 41, 43 and 45 of the Employment Act, 2007 place burdens on employers which a Response must be structured to discharge. A Response consisting of bare denials without contextualised engagement with those statutory obligations discloses no defence worthy of trial, so leave to defend was refused.

p. 3

Legal principles established

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  • Whether a person served with court process qualifies as a principal/statutory officer is determined by the functions assigned to that person, and a Human Resource & Administration Officer of an entity with regional offices meets the statutory manager categorisation under the Companies Act, 2015.

Court orders

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  1. 1.The application dated 17 October 2017 dismissed with costs to the Claimant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016; review/set aside application under the Court's rules

Relief refused

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Setting aside and/or review of the judgment and unconditional leave to defend

Service was proper; the draft Response raised no triable issues, consisting only of bare denials

p. 3

Costs

Application dismissed with costs to the Claimant

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.

The Court therefore holds that the service which was effected upon the Respondent met the letter and spirit of Rule 12 the Employment and Labour Relations Court (Procedure) Rules 2016.
p. 2Proper service on a company
a Human Resource & Administration Officer in a region would meet the statutory manager categorisation in the Companies Act
p. 2Who is an officer/manager for service
the Court finds no merit in the application dated 17 October 2017 and orders that it be dismissed with costs to the Claimant.
p. 3Final orders
It does not raise triable issues but merely consists of bare denials and the putting of the Claimant to proof.
p. 3Triable issues

Issues in the judgment

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minor

Internal inconsistency in dates: the application is dated 17 October 2017 and said to have moved the Court on 18 October 2017, yet the Court was said to have granted interim orders ex parte on 19 October 2017, while the Respondent is described as moving the Court on 18 October 2017; also paragraph 2 refers to a judgment of 28 July 2017 while the application seeks to set aside a judgment dated 7 September 2017.

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, "Thomas Kimutai Biwott v Kenya Power & Lighting Co. Ltd [2017] KEELRC 2003 (KLR)", Case Analysis (2017). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/2003/eng@2017-11-24

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