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Case Brief · caselaw.co.ke
ELRCDismissedELRC Cause No E6588 of 2020

Grace Muthoni Chomba v Legacy Dental Clinic Limited

Employment and Labour Relations Court of Kenya at Nairobi
8 October 2026
2,604 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Respondent, Legacy Dental Clinic Limited, applied to set aside an interlocutory judgment entered against it after it failed to enter appearance or file a defence, on the grounds that court process was served on an incorrect email address and that it only learned of the suit when served with a proclamation and warrants of attachment. It also sought to have its Memorandum of Appearance and Response deemed properly filed, asserting a defence that the Claimant was a casual engaged for under three months and thus not its employee. The Claimant opposed, asserting multiple services including physical service on 31st January 2025 pursuant to court directions. The court held that since it had rejected the earlier email service and ordered fresh physical service, the Respondent could not challenge service on the basis of the rejected email service. Physical service on 31st January 2025, evidenced by an unchallenged affidavit of service, was properly effected, rendering the default judgment regular. The Respondent offered no explanation for its failure to defend after that service, and did not cross-examine the process server. On the proposed defence, the court held that the Employment Act recognises casual labourers as employees and section 37 converts engagements exceeding one month into indefinite employment; the remaining draft defence comprised bare general denials, which are not a proper defence. The application dated 29th June 2026 was dismissed, the judgment of 26th September 2025 was upheld, and costs were granted to the Claimant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the interlocutory judgment delivered on 26th September 2025 was regular or irregular, having regard to service of summons and pleadings
  2. 2.Whether the Respondent demonstrated an inadvertent error or excusable mistake justifying exercise of discretion to set aside the default judgment
  3. 3.Whether the draft defence discloses a reasonable/triable defence to the claim

Key legal issues

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01

Regularity of the default judgment and validity of service

Holding

The judgment was regular; service was properly effected by physical delivery to the Respondent's director on 31st January 2025 pursuant to court directions, the earlier email service having been rejected by the court.

Reasoning

The court had on 11th December 2024 and 20th January 2025 ordered fresh physical service after rejecting email service. An affidavit of service dated 3rd February 2025 by process server Dickson Ooko Giani showed physical delivery on 31st January 2025. The Respondent did not deny this specific service nor seek to cross-examine the process server, so the claimant's evidence of service remained uncontroverted and the challenge based on email service was misconceived.

p. 8
02

Whether the failure to defend was excusable

Holding

No; the Respondent offered no explanation for failing to enter appearance after proper physical service.

Reasoning

A regular default judgment may still be set aside in the discretion of the court where the failure to defend stems from inadvertence or excusable mistake. Here the Respondent gave no explanation for its inaction after 31st January 2025 and instead attacked the rejected email service. The discretionary basis for setting aside was therefore not made out.

p. 9
03

Whether the draft defence discloses a reasonable defence

Holding

No; the defence rests on a mistaken view of casual employment and bare denials.

Reasoning

The proposed defence was that the claimant was a casual engaged for under three months and thus not an employee. The court held that sections 2 and 37 of the Employment Act recognise casual labourers as employees and convert engagements exceeding one month into indefinite contracts. The remainder of the draft defence comprised general denials, which are not a proper defence.

p. 11

Legal principles established

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  • A default judgment obtained without proper service is irregular and must be set aside as of right; one obtained after proper service is regular and setting it aside is discretionary.
  • There is a presumption of service from a process server's affidavit; the party denying service should put the process server to cross-examination.
  • Section 37 of the Employment Act converts a casual engagement lasting more than one month into an indefinite employment contract, so casual engagement is no defence to an employment claim.
  • A defence consisting of general denials is not a proper defence.

Court orders

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  1. 1.The application dated 29th June 2026 is dismissed
  2. 2.The judgment delivered on 26th September 2025 is upheld
  3. 3.Costs of the application are granted to the Claimant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
First-instance employment and labour relations jurisdiction of the ELRC (Employment and Labour Relations Court Act); judgment entered on formal proof now sought to be set aside

Relief refused

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Setting aside of the interlocutory judgment of 26th September 2025 together with all consequential orders

Service was properly effected by physical delivery after the court had rejected email service; no inadvertence or excusable mistake shown; draft defence discloses no reasonable defence

p. 11

Deeming the Memorandum of Appearance and Response to Memorandum of Claim as properly filed

Fell with the dismissal of the application

Costs

Costs of the application are granted to the Claimant.

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.

As such, it is dismissed with the consequence that the judgment which was delivered on 26th September 2025 is upheld.
p. 12Final orders - dismissal of application and upholding of default judgment
In such case, the court is duty bound to set aside the judgment as a matter of right to the aggrieved party
p. 5Irregular default judgments
the court will not usually set aside the judgement unless it is satisfied that there is a defense on the merits
p. 5Defence on merits means a triable issue (Patel v East Africa Cargo Handling)
the court will not set aside the judgment in order to assist a litigant who has deliberately sought to obstruct or delay the course of justice.
p. 6Limits of discretion to set aside (Shah v Mbogo)
In law, a general denial is not considered as a proper defense
p. 11General denials as defence

Issues in the judgment

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minor

Chronology inconsistencies: application dated 29th June 2026 postdates the 26th September 2025 judgment but a proclamation is said to have been served 10th December 2025; formal proof on 28th May 2025 with service dates of 9th February 2021 is inconsistent with a 2020 cause heard in 2025

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, "Grace Muthoni Chomba v Legacy Dental Clinic Limited", Case Analysis (2026). ELRC Cause No E6588 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2774/eng@2026-10-08

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