Balo v Babs Security Services Limited (Cause 24 of 2016) [2024] KEELRC 1555 (KLR)
The bottom line
#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 application founded on Rule 13(4), 16(1) of the Industrial Court (Procedure) Rules, 2010 (obsolete rules) was competent
- 2.Whether the respondent was properly served with summons, warranting the ex parte interlocutory judgment and final judgment of 9 December 2016
- 3.Whether the ex parte judgment should be set aside and the respondent granted leave to file its response out of time
- 4.Whether the process server should be summoned for cross-examination on the Affidavit of Service
- 5.Whether the respondent has a reasonable defence raising triable issues
Key legal issues
#Validity of the application founded on obsolete rules
The application cited Rule 13(4), 16(1) of the Industrial Court (Procedure) Rules, 2010, which are obsolete; however the court went on to consider the application on its merits since the substantive provisions are word for word similar to the 2016 Rules
The claimant objected that the 2010 Industrial Court Rules no longer govern, as proceedings are now regulated by the Employment and Labour Relations Court (Procedure) Rules, 2016. The court noted the objection but found that even if the 2010 Rules applied, the service provisions are identical in substance, so the court determined the issues at hand rather than dismissing outright on that ground.
Whether service on the respondent was proper
Service was proper: the summons stamped and received by the secretary/receptionist Maggie at the respondent's offices satisfied Rule 12 of the ELRC (Procedure) Rules, 2016
The Affidavit of Service showed the process server effected service and the summons was signed and stamped by the secretary/receptionist. Under Rule 12, service on a corporate body may be effected on the secretary, director or principal officer, or by leaving the pleadings at a conspicuous place at the registered office. By accepting and stamping the summons at its offices, service was validly effected.
Whether the ex parte judgment should be set aside and leave to defend granted
No: the respondent failed to show a reasonable defence, its draft response being mere denials lacking the employment records required under Section 10(6) and (7) of the Employment Act, 2007
The court applied the settled test that an applicant seeking to set aside an ex parte judgment must show a defence raising triable issues. The 9-paragraph draft response consisted of mere denials and an unparticularized counterclaim, contrary to Section 10(6) and (7) of the Employment Act, 2007 and the principle in Raghbir Singh Chatte that a general traverse is insufficient. Reopening the case would be a wild goose chase.
Whether the process server should be summoned for cross-examination
No: service being proper and the judgment having addressed the claim on the merits, the orders sought were not justified
The court had already found service proper under Rule 12. Since service was validly effected and the earlier judgment satisfied itself on service before proceeding, there was no basis to summon the process server for cross-examination on the Affidavit of Service.
Legal principles established
#- Service on a corporate body may be effected on its secretary, director or principal officer, or by leaving pleadings at a conspicuous place at the registered office
- An application to set aside an ex parte judgment must demonstrate a reasonable defence raising triable issues; a mere general traverse is insufficient
Court orders
#- 1.The application dated 23 April 2024 was dismissed
- 2.Costs of the application awarded to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016 (original employment and labour relations jurisdiction)
Relief refused
#Leave for Ngigi Karomo & Associates Advocates to come on record for the respondent
The entire application was found devoid of merit and dismissed
Temporary stay of execution against the claimant's attachment of the respondent's proclaimed movable assets
The entire application was found devoid of merit and dismissed
Setting aside the ex parte interlocutory judgment and final judgment of 9 December 2016
Service was proper and the respondent's draft response was a mere general traverse with no work records
Summoning of the process server for cross-examination on the Affidavit of Service
Service was proper under Rule 12 of the ELRC (Procedure) Rules, 2016, so the orders were not justified
Leave to file response to the claim out of time
The draft response contained mere denials and no work records required under Section 10(6) and (7) of the Employment Act; reopening would be a wild goose chase
Costs
Dismissed with costs to the claimant
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.
Application dated 23 April 2024 is devoid of any merit and is hereby dismissed with costs to the claimant.
Service upon the secretary, director or principal officer of the corporation is allowed.
at the heart of an application seeking to set aside an ex-parte judgment is that the respondent has a good response to the claim and if locked out of court will be prejudiced and unable to ventilate the same.
a mere denial or general traverse in defence is not sufficient and a defendant who does not specifically plead to all the issues raised in a plaint risks the probability of his defence being struck out
Issues in the judgment
#The judgment does not state the cause/file number of the claim or the name of the claimant
The application is premised on provisions of the repealed Industrial Court (Procedure) Rules, 2010, which the judgment notes are obsolete
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Balo v Babs Security Services Limited (Cause 24 of 2016) [2024] KEELRC 1555 (KLR)", Case Analysis (2024). Not stated in the judgment (memorandum of claim filed 21 January 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1555/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.