Grace Muthoni Chomba v Legacy Dental Clinic Limited

f) That the Memorandum of Appearance and Response to Memorandum of Claim attached to the application be deemed as properly filed. g) That costs of the application to be in the cause. 3. The application is anchored on the grounds on the face thereof. It is also supported by the affidavit of James Kamande, one of the Respondent’s directors. 4. The affiant asserts that he was not aware of the case until he was served with a proclamation notice and warrants of attachment on 10th December 2025. He asserts that the Claimant did not issue him and or the Respondent with a demand note in respect of the case or a mention or hearing notice. 5. It is noteworthy however, that the affiant has not expressly stated that the Respondent was not served with Summons to Enter Appearance. Perhaps he desires the court to infer this from his averment that he was not aware of the suit. 6. The affiant alleges that after he learned of the suit, he instructed his lawyers to file the instant application. He asserts that the Respondent has a good defense to the action because the Claimant was not its (the Respondent’s) employee. He alleges that the Claimant was only engaged as a casual for not more than three months. ELRC CAUSE NO E6588 OF 2020 2

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7. The affiant contends that the affidavits of service on record show that the Claimant allegedly served the court processes upon the Respondent through email. However, he alleges that the email address which was used was incorrect and hence the Respondent’s failure to enter appearance in the matter. 8. The affiant avers that the Respondent only learned of the case when it was physically served with the proclamation. He avers that the Respondent is keen to defend the cause. 9. The Claimant has opposed the application. She filed a replying affidavit dated 13th July 2026 to anchor her response to the motion. 10. The Claimant contends that contrary to the Respondent’s assertions, the pleadings in the cause were properly served on it (the Respondent) in accordance with the provisions on service of court processes in the Civil Procedure Rules, 2010. 11. The Claimant avers that the Respondent was served with the court processes in the cause several times. For example, she avers that the summons to enter appearance were first served on it (the Respondent) on 9 th February 2021 and again on 31st January 2025. In addition, she contends that it (the Respondent) was served with other court processes on diverse dates including 5 th ELRC CAUSE NO E6588 OF 2020 3

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December 2024, 3rd February 2025, 30th June 2025 and 26th August 2025. 12. The Claimant contends that the Respondent’s contention that the email address which was used to effect service of the court processes on it was incorrect is not true. She avers that the Respondent confirmed the email address to be the correct one. 13. The Claimant nevertheless avers that service of the court processes on the Respondent was not done through email alone. She contends that it was also done physically. 14. Therefore, the Claimant contends that the failure by the Respondent to enter appearance and file a defense to the cause cannot be justified on account of non-service of the court processes. She avers that the Respondent’s inaction can only be attributed to its negligence in handling the matter. 15. The Claimant avers that the Respondent has no plausible defense to the suit. She contends that all that it (the Respondent) has set out in the draft defense are bare denials. Analysis 16. The law on setting aside default judgment is now well settled. In making its decision in this respect, the court is guided by whether the default judgment is regular or irregular. ELRC CAUSE NO E6588 OF 2020 4

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17. If the judgment was obtained without proper service or without service at all of summons to enter appearance or notice of hearing, it is considered as irregular. In such case, the court is duty bound to set aside the judgment as a matter of right to the aggrieved party (see Nderitu & another v Ghikas & another [2016] KECA 470 (KLR)). It (the court) has no discretion in the circumstances to elect whether or not to set aside the decision. 18. On the other hand, if the judgment was obtained after proper service of summons to enter appearance and or notice of hearing on a defendant who for one reason or another failed to defend the proceedings, it (the default judgment) is considered as regular. In such case, the court has unfettered discretion to decide whether or not to set aside the judgment (Nderitu & another v Ghikas & another (supra)). 19. However, in order for the court to exercise its discretion in favour of setting aside the judgment, it must be convinced that the defendant has a good defense to the cause. Speaking to the matter in the case of Patel v East Africa Cargo Handling Services Ltd(1974) EA 75, Duffus P expressed himself as follows:‘’I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement unless it is satisfied that there is a defense on the merits. In this respect defense on merits, does ELRC CAUSE NO E6588 OF 2020 5

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not mean in my view, a defense that must succeed, it means as Sheridan J, put it “a triable issue” that is an issue which raises a prima facie defense and which should go to trial for adjudication.” 20. In the case of Shah v Mbogo & another (1967) EA 116, it was stated that the court will exercise its discretion to set aside a regular default judgment in order to avoid occasioning injustice or hardship to the applicant resulting from an accidental slip, inadvertence or an excusable mistake or error. However, it (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. 21. In the instant case, the Respondent asserts that the pleadings were served through a wrong email. As such, it avers that there was no service of the pleadings and other court processes thus entitling it to have the resultant judgment set aside as a matter of right. 22. It is apparent from the court record that although the Respondent was initially served with summons to enter appearance in the cause through email, the court rejected this service and directed that it (the Respondent) be reserved. This order was made on 11th December 2024. 23. On 20th January 2025, the court reiterated its directions regarding fresh service of the summons to enter appearance. In addition, it directed that service of the ELRC CAUSE NO E6588 OF 2020 6

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pleadings on the Respondent be done physically within seven (7) days. 24. Following these directions, the court file shows that on 31 st January 2025, the Claimant physically delivered to the Respondent a Mention Notice of even date, a Notice of Change of Advocates and the Memorandum of Claim. According to the affidavit of service dated 3 rd February 2025, the documents were physically served on the Respondent’s director by a process server named as Dickson Ooko Giani. 25. The Respondent has not denied that the aforesaid pleadings were physically delivered to it on 31 st January 2025 as stated in the aforesaid affidavit of service. Rather, it makes a general assertion that it did not receive the documents which were allegedly served on it through email because the email address which was used to effect the service was incorrect. 26. In my view, the court having ordered on 11 th December 2024 and 20th January 2025, for the Respondent to be served with the pleadings physically and the Claimant having confirmed service of the pleadings on 31 st January 2025 as per the aforesaid court directions, service of the pleadings on the Respondent was properly effected. The Respondent cannot challenge this service by purporting to dispute the email service which the court had already rejected and ordered fresh physical service. As such and ELRC CAUSE NO E6588 OF 2020 7

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based on the record, I am convinced that the Respondent was properly served with the court processes when the Memorandum of Claim was physically delivered to its director on 31st January 2025. 27. It is also noteworthy that although the Respondent alleges that it was not served with the court processes, it did not seek to cross-examine the process server who swore the affidavit of service dated 3rd February 2025. Absent this, the position by the Claimant that the Respondent was properly served remains uncontroverted. 28. Speaking to this, the court in the case of Shadrack Arap Baiywo v Bodi Bach [1987] KECA 69 (KLR) expressed itself as follows:‘’There is a presumption of service as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.” 29. The aforesaid being the case, the Respondent loses the entitlement to have the impugned judgment set aside as a matter of right. Nevertheless, the court may still exercise ELRC CAUSE NO E6588 OF 2020 8

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its discretion to set aside the judgment if it is demonstrated that there is a viable defense to the cause and if the party seeking the order is able to demonstrate that the failure to file defense or appear for the trial was out of inadvertence or excusable mistake. 30. Although the court record shows that the Claimant physically served the Respondent’s director with the pleadings on 31st January 2025, the Respondent does not offer any explanation to justify why it did not enter appearance or file defense after this service. Instead, it seeks to challenge service of the court processes on the basis of the earlier service through email which, as seen earlier, was rejected by the court and counts for nothing in determining whether service of pleadings was properly effected. Having regard to the foregoing, it is apparent that the Respondent has not demonstrated that the failure to enter appearance and file defense to the cause was occasioned by an inadvertent error on its part to warrant the court to exercise its discretion to set aside the default judgment in order to save it (the Respondent) from hardships or injustice occasioned by the inadvertent error. 31. In the replying affidavit, the Respondent contends that it has a good defense to the claim since the parties did not have an employment relationship. It contends that the Claimant was engaged as a casual for a period of not more than three months. In the Respondent’s view, the ELRC CAUSE NO E6588 OF 2020 9

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casual nature of the engagement between the parties did not result in an employment relationship. 32. The Respondent reiterates this position in the draft defense. It contends that because the engagement between the parties was on casual basis, there was no employment relationship between them. As such, it (the Respondent) contends that the Claimant is not entitled to the terminal benefit she claims in the suit. 33. The Respondent’s contention in this respect is misguided for two reasons. First, the Employment Act recognizes casual labourers as employees (see sections 2 & 37 of the Act). As such, the Respondent’s assertion that there was no employment relationship between the parties because of the casual engagement of the Claimant does not, in law, amount to a valid defense to the claim. 34. Second, the Respondent’s assertion that the relation between them, having allegedly been for no more than three months, did not mature into an employment relationship fails to acknowledge that section 37 of the Employment Act converts any casual labour engagement which lasts for more than one month into an indefinite employment engagement. As such, the Respondent’s position in this respect does not, in law, constitute a valid defense to the claim. 35. The rest of the draft defense does not raise specific defenses to the Memorandum of Claim. There is for ELRC CAUSE NO E6588 OF 2020 10

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instance no specific response to the Claimant’s claims that the Respondent violated her constitutional rights or that the Respondent breached her legitimate expectation that she was to continue in service. The Respondent merely makes general denials of the averments in the Memorandum of Claim whilst inviting the Claimant to strict proof thereof. In this context, it is apparent that the proposed defense comprises general denials. 36. In law, a general denial is not considered as a proper defense (Kenya Orient Insurance Limited v Kagohu alias Kale (Civil Appeal 93 of 2022) [2024] KEHC 10790 (KLR) (17 September 2024) (Judgment)). As such, the draft defense, containing in large part bare denials, does not constitute a valid defense to the claim to warrant the re-opening of the proceedings. 37. The upshot is that the draft defense does not disclose a reasonable defense to the action. Besides exhibiting a clear misapprehension of the employment status of the Claimant, it comprises of bare and general denials. 38. The foregoing being the case, the court finds that it is not entitled to exercise its discretion to set aside the impugned judgment. There is no reason why the matter should be re-opened for trial in the absence of a cogent defense to the cause. Determination ELRC CAUSE NO E6588 OF 2020 11

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39. The upshot is that the court finds that the application dated 29th June 2026 is devoid of merit. 40. As such, it is dismissed with the consequence that the judgment which was delivered on 26th September 2025 is upheld. 41. Costs of the application are granted to the Claimant. Dated, signed and delivered on the 8th day of October, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and ELRC CAUSE NO E6588 OF 2020 12

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rulings shall be dated, signed and delivered in the open court. B. O. M MANANI ELRC CAUSE NO E6588 OF 2020 13

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