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ELRCDismissedNot stated in the judgment· [2024] KEELRC 2312 (KLR)

Chirani v Ecoplast Limited (Employment and Labour Relations Cause 226 of 2018) [2024] KEELRC 2312 (KLR)

Employment and Labour Relations Court
26 September 2024
OKOcharo Kebira
2,818 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to set aside a default judgment, finding the company was properly served and its application cited the wrong legal rules.

What this practically means

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Executive summary

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The Respondent/Applicant moved the Court by Notice of Motion dated 22nd April 2024 seeking to set aside the default Judgment entered against it on 9th March 2023 after a formal proof hearing, and for leave to file its response out of time. It argued that neither the Statement of Claim nor summons were served on it, that the affidavit of service by Benson Mutinda contained falsehoods since the Managing Director never signed the served documents, and that it only learnt of the suit when auctioneers proclaimed its properties on 22nd March 2024 in execution of the decree of Kshs. 207,000/- plus costs and interest. The Claimant/Respondent opposed, asserting that the Managing Director was duly served but refused to sign, that subsequent documents including a taxation notice were served via WhatsApp on his confirmed mobile number, and that the Respondent was guilty of laches and had not exhibited a draft defence. The court first found the application gravely mis-anchored: it invoked a non-existent rule (Rule 13(4) of the Industrial Court (Procedure) Rules 2010) and the inapplicable Order 40 Rule 7 of the Civil Procedure Rules, and Article 159 could not cure such defects. In the alternative, applying the regular-versus-irregular default judgment distinction from James Kanyiita Nderitu, the court held that service was duly effected, drawing an adverse inference from the applicant's failure to seek examination of the process server. The application was dismissed with costs.

Key legal issues

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01

Whether the application to set aside the default Judgment was properly anchored

Holding

The application was gravely mis-anchored - it relied on a non-existent rule (Industrial Court (Procedure) Rules 2010, Rule 13(4)) and irrelevant provisions (Order 40 Rule 7 CPR)

Reasoning

The court noted Rule 13(4) of the Industrial Court (Procedure) Rules 2010 does not exist; the applicable rules are the ELRC (Practice) Rules 2016. Civil Procedure Rules apply only to the extent allowed. Order 40 Rule 7 concerns temporary injunctions and had no bearing on setting aside a default judgment. Article 159 cannot cure such mis-anchoring.

p. 3
02

Whether the default Judgment was irregularly entered for lack of service

Holding

The Judgment was regular; service on the Managing Director was proved by the process server's affidavit of service

Reasoning

The applicant claimed it was never served, pointing to the absence of the Managing Director's signature on the served documents. The court held that refusal to sign does not disprove service and that the applicant's failure to seek examination of the process server under Order 5 Rule 16 warranted an adverse inference that the examination would not have assisted it.

p. 5

Legal principles established

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  • Where a party alleges improper service but does not pursue the available mechanism of examining the process server, the court may draw an adverse inference and find service was duly effected

Court orders

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  1. 1.The Notice of Motion dated 22nd April 2024 is dismissed with costs
Jurisdiction invoked
Article 159 of the Constitution; Industrial Court (Procedure) framework as governed by the Employment and Labour Relations Court (Practice) Rules, 2016

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, "Chirani v Ecoplast Limited (Employment and Labour Relations Cause 226 of 2018) [2024] KEELRC 2312 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2312/eng@2024-09-26

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