Gikundi v Kenya National Chamber of Commerce and Industry & 2 others (Cause E013 of 2021) [2025] KEELRC 1422 (KLR)
The bottom line
#A Kenyan court set aside an employment judgment won without proper service, proving that flawed procedure can undo even a decided case.
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 impugned judgment was irregular and should be set aside
- 2.Whether the attached goods belong to the objectors
- 3.What are the appropriate orders for the court to grant in the circumstances of the case
Key legal issues
#Whether the judgment of 16th June 2023 was irregular
Yes - service was never effected on the 2nd respondent, making the judgment irregular
The 2nd respondent denied being served by Vivian Aketch Advocate, whose affidavit of service was the basis of the formal proof judgment. The advocate filed no affidavit to contest the denial. The court drew the inference that no service occurred, found a procedural defect, and classified the judgment as irregular rather than regular, requiring setting aside without inquiry into any defence.
Whether the objection proceedings could survive the setting aside
They became otiose because the decree they attacked no longer exists
Once the underlying judgment and decree were set aside and the suit reopened, there was no decree capable of supporting execution. The objectors' motion to raise the proclamation of attachment was therefore overtaken by events and no findings were made on ownership of the attached goods.
Legal principles established
#- An irregular judgment - one entered where the defendant was not served with pleadings and summons - must be set aside whether or not the defendant has a defence
- Where a denial of service by the serving advocate is not rebutted by the advocate's affidavit, the court infers that no service was effected
Court orders
#- 1.The judgment of this court delivered on 16th June, 2023 is hereby set aside together with all the proceedings in the case
- 2.The suit is re-opened and the respondents granted leave to file and serve response to the statement of claim within 14 days of the Ruling
- 3.The objection proceedings are overtaken by events as there is no decree upon which the attachment can be based
- 4.The claimant has 7 days to file a reply to the Response if need be
- 5.The claimant is awarded throwaway costs of Kshs.10,000 to be paid within 21 days, failing which he may execute
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court (ELRC Procedure Rules referenced); not stated in the judgment
Relief refused
#Order for examination of Vivian Loice Aketch as to the truthfulness of her affidavit of service
Rendered moot by setting aside of the judgment
Objectors' application for raising of the proclamation of attachment
Objection proceedings rendered otiose once the decree was set aside
Costs
Throwaway costs of Kshs.10,000 awarded to the claimant, payable within 21 days, with liberty to execute in default; other costs in the cause as sought
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.
an irregular judgment must be set aside whether the defendant has a defence or not. All what the defendant needs to satisfy the court is that the judgment was irregular
A regular judgment is one where a defendant was properly served with pleadings and summons to enter appearance but failed to enter appearance. In such circumstances, the court has wide discretion to set aside the judgment upon terms that are just.
The judgment of this court delivered on 16th June, 2023 is hereby set aside together with all the proceedings in the case.
The suit is hereby re-opened and the respondents granted leave to file and serve response to the statement of claim within 14 days of this Ruling.
The claimant is awarded throwaway costs of Kshs.10,000 to be paid within 21 days of this ruling and in default he will be at liberty to execute.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikundi v Kenya National Chamber of Commerce and Industry & 2 others (Cause E013 of 2021) [2025] KEELRC 1422 (KLR)", Case Analysis (2025). Not stated in judgment (ELRC at Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1422/eng@2025-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.