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ELRCPartially AllowedNot stated in the judgment as reproduced· [2021] KEELRC 585 (KLR)

Peter Mutua Muindi v Ansaldi Roberto [2021] KEELRC 585 (KLR)

Employment and Labour Relations Court
30 September 2021
MMM. Mbaru
1,593 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court threw out a judgment won without proper service of summons, but still ordered the defaulting respondent to pay costs and file a defence quickly.

What this practically means

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Executive summary

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The respondent, Ansaldi Roberto, applied by notice dated 21st January 2021 for stay of execution of a judgment and decree entered against him, setting aside of the proceedings and judgment, cross-examination of two process servers, and unconditional leave to defend the claim. He asserted he was never served with summons, mention or hearing notices and only learned of the matter when warrants of attachment were issued; passport extracts showed he was out of the country on the dates of alleged service. The claimant opposed, contending the passport extracts were unverified and did not establish his whereabouts, and that a valid judgment existed. The court applied the classic Shah v Mbogo discretion, holding that setting aside ex parte proceedings serves to avoid injustice from inadvertence or excusable mistake, not to reward deliberate evasion. Finding no contrary evidence rebutting the passport extracts, the court held it was prima facie established that the respondent was out of the country when the process server alleged personal service, and that without service of summons the proceedings lacked a proper foundation and were invalid. The respondent's failure to attend was not deliberate. Invoking natural justice and the need for both parties to be heard on the merits, the court set aside the judgment, decree and consequential orders, but refused unconditional leave to defend because the respondent did not demonstrate his defence. The respondent was ordered to pay the claimant Kshs.20,000 within 30 days, to file and serve a defence within 14 days, with the claimant having 14 days to reply, and a priority hearing date was to be allocated given the age of the file. Costs were awarded in the suit.

Key legal issues

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01

Whether service of summons was effected on the respondent

Holding

The court found service was not effected; the respondent's passport extracts showing exits and entries on the material dates stood as prima facie evidence he was out of the country and unrebutted

Reasoning

The process server's affidavit alleged personal service at the respondent's Karen residence on 9 January 2015. The respondent attached passport extracts showing he was out of the country. The court held there was no contrary evidence proving the passport entries false, so the assertion of personal service was prima facie improbable. The claimant had also not sought alternative registered service as the rules permitted after failed efforts.

p. 2
02

Whether the proceedings and judgment should be set aside and leave to defend granted

Holding

Judgment and decree were set aside for want of service and the absence of deliberate evasion, but unconditional leave to defend was refused because the respondent did not demonstrate his defence

Reasoning

Applying Shah v Mbogo, the discretion to set aside ex parte proceedings exists to prevent injustice where absence is not deliberate. Having found no proper service, the proceedings lacked foundation and were invalid. Natural justice required both parties be heard on the merits. However, the applicant had to show a defence on the merits to earn leave to defend, which he failed to do, so the court attached a costs condition and a timetable instead.

p. 2

Legal principles established

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  • The court's discretion to set aside ex parte proceedings exists to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a person who deliberately obstructed or delayed justice
  • Sufficient cause is a question of fact to be assessed in the varied and special circumstances of each case; there is no straight-jacket formula
  • Where there is no service of summons, the resulting proceedings lack a proper foundation and are invalid

Court orders

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  1. 1.Judgment herein and decree and all consequential orders thereof are set aside
  2. 2.The respondent shall pay the claimant costs of Ksh.20,000 within 30 days
  3. 3.The respondent shall file defence within 14 days and serve the claimant who shall have a right of reply within 14 days thereof
  4. 4.Taking note of the age of the file, a hearing date shall be allocated on priority basis
  5. 5.Costs in the suit
Jurisdiction invoked
Inherent and statutory jurisdiction to stay execution and set aside its own proceedings and judgment (discretionary jurisdiction under the applicable court procedure rules; Industrial Court (Procedure) Rules, 2014 discussed for service requirements)

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, "Peter Mutua Muindi v Ansaldi Roberto [2021] KEELRC 585 (KLR)", Case Analysis (2021). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/585/eng@2021-11-03

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