Masinde v Golden Loaf Bakers Company Limited (Employment and Labour Relations Appeal 5 of 2019) [2023] KEELRC 955 (KLR)
The bottom line
#Kenya's Employment Court set aside a Kshs 141,856 judgment won on appeal because the losing company was never properly served — the case now goes to a fresh trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent was properly served with the claim and the appeal documents
- 2.Whether the Court should review/set aside its judgment on appeal delivered on October 25, 2021 on the ground of lack of proper service
Key legal issues
#Properness of service of the claim and appeal documents
Service on a security guard, Philip Ogola, without explanation of the circumstances, did not constitute proper service on the respondent.
The affidavit of service sworn on November 10, 2019 showed that summons were served on Philip Ogola, a security guard, rather than an authorized official of the respondent. The process server did not state under what circumstances he served the guard instead of an authorized official. The court therefore found service improper, satisfying the precondition for setting aside the ex-parte judgment.
Whether the Court could review its own judgment on appeal
Yes - having found no proper service, the Court reviewed its own judgment of October 25, 2021 and substituted it with an order for re-trial before another Magistrate.
The Court held that the essence of service is to ensure no party is condemned unheard, and a judgment entered without hearing a party can be set aside once non-service is sufficiently demonstrated. It distinguished the earlier appeal, which concerned whether the lower court was justified in dismissing the suit - an issue on which service was not in play.
Legal principles established
#- The principle behind service of court papers is grounded in natural justice - no person should be condemned unheard.
- A judgment entered without hearing a party can be set aside where the affected party sufficiently demonstrates there was no proper service.
Court orders
#- 1.The Court's judgment on appeal delivered on October 25, 2021 is reviewed and substituted with an order of re-trial of ELRC No. 86 of 2018 before another Magistrate
- 2.The respondent is directed to file and serve its response to the claim and necessary documents and witness statements within 21 days of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court (ELRC No. 86 of 2018)
- ELRC No. 86 of 2018
- Jurisdiction invoked
- Inherent power of the Court to review its own judgment; invoked on the respondent's application dated April 25, 2022
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.
The Court in this particular matter is satisfied that there was no proper service on the respondent and therefore reviews its judgment on appeal delivered on October 25, 2021 and hereby substitute therewith an order of re-trial of ELRC No 86 of 2018 before another Magistrate.
The respondent is hereby directed to file and serve response to the claim and necessary documents and witness statements within 21 days of this ruling.
The principle behind service of court papers is premised on the rule of natural justice that a person should not be condemned unheard.
Therefore, a judgment entered without hearing a party to suit can be set aside once the party afiected suficiently demonstrates that there was no proper service.
Issues in the judgment
#The judgment does not state the case number of the present appeal before the ELRC, only the lower court matter (ELRC No. 86 of 2018).
The judgment's title/opening describes the applicant as the respondent who lost the appeal, but the applicant's name never appears in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masinde v Golden Loaf Bakers Company Limited (Employment and Labour Relations Appeal 5 of 2019) [2023] KEELRC 955 (KLR)", Case Analysis (2023). Not stated in judgment (appeal from ELRC No. 86 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/955/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.