Winfred Mwongela Nzavi & another v Winfred Mwongela Nzavi & another [2018] KEELRC 1203 (KLR)
The bottom line
#Kenya's Employment Court ruled that leaving court documents with a security guard counts as proper service on a company, so Lufthansa Cargo could not undo earlier orders.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was proper service upon the 2nd respondent
- 2.Whether there was/is an employment relationship between the petitioners and the 2nd respondent
- 3.Whether the court should review, vary and or set aside the orders issued on 23rd June, 2017
Key legal issues
#Properness of service on a corporate body
Service by leaving the pleadings with the security guard at the 2nd respondent's offices was proper and in compliance with the court's directions
Rule 12 of the ELRC (Procedure) Rules, 2016 permits service on a corporate body through its secretary, director or principal officer, or alternatively by leaving pleadings at a conspicuous place at the registered office or place of business. The process server was denied access and left documents with the guard at 4.20pm on the day service was directed. The guard ought to have declined service or granted access, and no affidavit explained what became of the documents. Non-attendance on 23rd June 2017 was unexplained.
Whether an employment relationship existed between the petitioners and the 2nd respondent
This is a question of fact that cannot be determined at the interlocutory stage and must be resolved at the full hearing of the petition
The 2nd respondent asserted the petitioners remained employees of the 1st respondent with no secondment; the petitioners averred they were transferred in 2011 and trained locally and abroad. These averments are vehemently opposed. The court found that deciding the employment question then would deny the petitioners a fair chance to argue the petition on its merits and deprive the court of relevant material for final orders.
Legal principles established
#- Service on a body corporate may be effected through its officers or by leaving pleadings at a conspicuous place at the registered office or place of business under Rule 12 of the ELRC (Procedure) Rules, 2016
- A security guard who accepts service at an employer's premises ought to have declined service or allowed the process server access; where no evidence shows what became of documents accepted, service is deemed proper
- Whether an employment relationship arose by transfer, secondment or agreement is a question of fact to be interrogated at a full hearing, not on an interlocutory application
Court orders
#- 1.Application dated 11th July, 2017 is declined
- 2.Parties to exchange their responses to ensure pleadings close
- 3.A hearing date for the main Petition to be allocated on priority
- 4.Costs in the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 12(3) and 16 of the Employment and Labour Relations Court Act; Rule 17(7) and Rule 12 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Setting aside and/or varying the ex-parte orders made on 23rd June 2017 and all consequential orders
Service upon the 2nd respondent was held proper under Rule 12, and the employment question is one of fact to be determined at a full hearing
Costs
Costs in the petition
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.
Such service at the registered offices of the respondents is allowed under Rule 12 of the Court Rules.
Whether there was transfer, secondment, agreement or employment of the petitioners by either respondent or both, such is a question of fact which should be interrogated at a full hearing.
Accordingly Application dated 11th July, 2017 is declined. the parties should exchange their responses to ensure pleadings close and a hearing date for the main Petition is allocated on priority. Costs in the petition.
Issues in the judgment
#Judgment contains typographical errors, e.g. year of redundancy notice rendered as '207' and '1 st despondent' for '1st respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Winfred Mwongela Nzavi & another v Winfred Mwongela Nzavi & another [2018] KEELRC 1203 (KLR)", Case Analysis (2018). Petition (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1203/eng@2018-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.