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ELRCDismissedMombasa ELRC Appeal from CMCC ELRC No. 993 of 2019

PN Mashru Limited v Kahiga (Appeal E057 of 2023) [2024] KEELRC 2082 (KLR)

Employment and Labour Relations Court
18 July 2024
1,455 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employer lost its appeal because it was properly served with court summons, ignored the case, and cannot use 'right to a hearing' to undo the judgment.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Mombasa against a ruling of the magistrate's court delivered on 15 February 2023 in CMCC ELRC No. 993 of 2019, which dismissed the appellant's application dated 12 July 2021 seeking to set aside an ex-parte judgment of 8 June 2021 and to be granted unconditional leave to defend an employment claim in which Kshs. 1,821,565 was awarded. The appellant argued that service of summons on it as a corporate body offended Order 5 rule 3(a) of the Civil Procedure Rules, that its draft response raised triable issues, and that dismissing the application denied it access to justice. The respondent maintained that service was proper, that the burden lay on the party alleging improper service, and that the application was rightly dismissed. The court held that a magistrates' court seized of an employment claim under Legal Notice No. 6024 of 22 June 2018 is regulated by the ELRC (Procedure) Rules, under which service on a corporate body is governed by Rule 12, and that the magistrate had correctly found service proper. The court further held that the right to a hearing is not absolute and that Article 48 cuts both ways: a party properly served who fails to attend or respond cannot later invoke access to justice to nullify the proceedings, nor can Order 5 rule 3(a) cure its non-attendance. The appeal was dismissed with costs to the respondent.

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 summons upon the appellant, a corporate body, was proper under Rule 12 of the ELRC (Procedure) Rules
  2. 2.Whether the ex-parte judgment delivered on 8 June 2021 was irregular
  3. 3.Whether the trial court's dismissal of the application dated 12 July 2021 should be disturbed on appeal

Key legal issues

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01

Regularity of service of summons on a corporate body

Holding

Service was proper under Rule 12 of the ELRC (Procedure) Rules; the trial court correctly analysed the Affidavit of Service.

Reasoning

The magistrate addressed the question of service, analysed the facts and the Process Server's Affidavit of Service, and found adherence to Rule 12 of the Court Rules, which governs service on corporates. The appellant's reliance on Order 5 rule 3(a) of the Civil Procedure Rules could not cure its non-attendance, since a magistrates' court seized of an employment claim is regulated by the ELRC (Procedure) Rules.

p. 3
02

Whether the ex-parte judgment of 8 June 2021 was irregular

Holding

The judgment was not irregular; the appellant, properly served, failed to attend or file a response.

Reasoning

Upon proper service the appellant was aware of the proceedings but failed to attend or file a response. The court held that the right to a hearing is not absolute and that a party cannot remain outside court and, once judgment is entered, seek to negate the process on access-to-justice grounds. Order 5 rule 3(a) of the Civil Procedure Rules could not be applied to cure the appellant's non-attendance.

p. 3
03

Whether the trial court's discretion in dismissing the application dated 12 July 2021 should be disturbed

Holding

No; the magistrate correctly dismissed the application and the appeal court could not fault the findings.

Reasoning

This being a first appeal against the ruling of 15 February 2023, the court reviewed the magistrate's treatment of service and found it well addressed. The application was dismissed because there was proper service and the appellant failed to attend or respond, resulting in a properly entered judgment. No basis was shown to interfere with the trial court's judicially exercised discretion.

p. 3

Legal principles established

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  • Service of summons upon a corporate body in employment claims is governed by Rule 12 of the ELRC (Procedure) Rules, requiring service on the principal officer or at the registered offices.
  • The right to a hearing under Article 48 is not absolute; a party properly served who fails to attend cannot later invoke access to justice to nullify the proceedings.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court at Mombasa (CMCC ELRC No. 993 of 2019)
CMCC ELRC No. 993 of 2019
Jurisdiction invoked
Legal Notice No. 6024 of 22 June 2018; Article 48 of the Constitution read with Section 29 of the Employment and Labour Relations Court Act

Relief refused

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Setting aside of the trial court ruling and order of 15 February 2023

The court could not fault the findings of the trial court on proper service and dismissal of the application dated 12 July 2021

p. 3

Setting aside of the ex-parte judgment and decree of 8 June 2021 and unconditional leave to defend

The appellant was properly served under Rule 12 of the Court Rules and squandered the opportunity to respond or attend

p. 3

Costs

Appeal dismissed with costs to the respondent

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 right to a hearing is not absolute. Article 48 of the Constitution provisions cut both ways. One cannot remain outside court and once a judgment is issued seek to negate the entire process on the basis that there is a right to access justice.
p. 3Access to justice and the limits of the right to a hearing
Indeed, for service of summons upon a corporate, Rule 12 of the Court Rules apply.
p. 3Service on corporate bodies in employment claims
Accordingly, the court finds no merit in the appeal and the same is dismissed with costs to the respondent.
p. 3Disposition

Issues in the judgment

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minor

Internal inconsistency in dates: paragraph 5 states the appellant sought to set aside the ex-parte judgment 'delivered on 15 February 2023' while elsewhere the ex-parte judgment is consistently dated 8 June 2021 and 15 February 2023 is the date of the ruling.

minor

The judgment refers to the applicant as 'respondent/applicant' in the recital of the lower court application, reversing the usual party designations.

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, "PN Mashru Limited v Kahiga (Appeal E057 of 2023) [2024] KEELRC 2082 (KLR)", Case Analysis (2024). Mombasa ELRC Appeal from CMCC ELRC No. 993 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2082/eng@2024-07-18

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