Edwin Kiplagat Bett v Al-Barakat Agency Limited & another

1:Whether the 2nd Respondent was duly served with the suit. The flawed service claimed. Applicant urges that the claimant’s affidavit of service reveals that the court documents were left with a receptionist violating the legal rule: under Order 5 Rule 3(a) of the Civil Procedure Rules, service on a corporation must be delivered directly to a secretary, director, or principal officer. That it is legally non-compliant, to leave summons court documents with a receptionist. High Court decision in Agrigreen Consulting Corp Limited v National Irrigation Board (2020) eKLR. 8. That the acknowledgment stamp on the summons belongs exclusively to the 1st Respondent Al-Barakat Agency Limited. The two respondents are separate legal entities, thus serving or receiving court process via one does not constitute valid service on the other. 9. Issue 2: Whether Ngonze & Ngonze Advocates represented the 2nd Respondent: No Lawful Authority: The claimant argues that Ngonze & Ngonze Advocates previously represented both companies. The 2nd Respondent counters that an advocate can only bind a party if they receive express or implied instructions. Case cited George Pariken Ole Narok v Cabinet Secretary (2021) eKLR and Kariuki t/a Gacau Kariuki & Co. Advocates v Njoroge (2025) eKLR. 10. Applicant relies on record that Ngonze & Ngonze’s initial Notice of Appointment February 2025 and their subsequent application to cease acting both explicitly name Al-Barakat Agency Limited as their sole client. There is no board resolution or authority showing they ever acted for P.N. Mashru Ltd. the 2nd Respondent was thus completely unrepresented. 11. Issue 3: Whether the application to reopen the case has merit: The court possesses discretionary power to reopen a case to avoid injustice. Case cited Samuel Kiti Lewa v Housing Finance Company of Kenya Ltd (2015) eKLR. Applicant urges that no prejudice will be suffered by the claimant: Reopening the case will not cause the claimant irremediable damage; that any added financial expenses can be adequately compensated through an order for costs. MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 2

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12. Applicant anchors the application on Article 50(1) of the Constitution guarantees the right to a fair hearing: reasonable notice required, and Article 159(2) that the court has obligation to render substantive justice without over-emphasizing procedural technicalities. 13. The submissions echo the grounds of the application and the supporting and further affidavits: defective Service: lack of service of the summons or the Memorandum of Claim, thus failure to attend court and defend cause was not deliberate or intended to obstruct the administration of justice, but was purely due to ignorance of the suit's existence. Reopening the case will cause no prejudice to the claimant or the 1st Respondent, as they will have a right to cross-examine the applicant’s witnesses. The supporting affidavit of Francis Mulili reiterates those arguments. Mulili avers he has been authorized to represent P.N. Mashru Limited via a Board Resolution dated 16th July 2026 signed by directors Prijit Jitendra Mashru and Dipesh Jitendra Mashru. He contends that the company was never served with court processes and therefore could not defend itself. It is just to exercise court’s discretionary power to re-open the trial before a final determination is made, ensuring substantive justice overrides technicalities. 14. The claimant Edwin Kiplagat Bett opposes the motion vide replying affidavit sworn 21/8/2026. 15. In the claimant’s submissions dated 3rd September 2026 urge that Sections 1A, 1B and 3A of the Civil Procedure Act enjoin this Honourable Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes, and impose on the parties a duty to assist the Court towards that end. The applicant's motion defeat rather than serve that very objective. Claimant submits the 2nd Respondent was served, and was represented. It pleaded to the claim, complied with the directions of the Court and was present, through counsel, at the hearing. Its Application is an afterthought whose only purpose and effect is to delay the delivery of judgment and to deny the Claimant the fruits of a claim. 16. The claimant prays that the Motion dated 20th July 2026 be dismissed with costs to the Claimant, and judgment be delivered in MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 3

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the matter. Claimant urges that the application does seek not a hearing on the merits but an opportunity to construct a defence after seeing the claimant’s entire case unfold. Allowing the application will be allowing gaps in the respondents’ case to be filled. 17. Claimant submits the 2nd Respondent's cited authority Kariuki t/a Gacau Kariuki & Company. The claimant prays that the Motion dated 20th July 2026 be dismissed with costs to the Claimant, and judgment be delivered in the matter. Claimant urges that the application does seek not a hearing on the merits but an opportunity to construct a defence after seeing the claimant’s entire case unfold. Allowing the application will be allowing gaps in the respondents’ case to be filled. 18. Claimant submits the 2nd Respondent's cited authority Kariuki t/a Gacau Kariuki & Company Advocates v Njoroge [2025] eKLR establishes that instructions may be express or implied from the conduct of the parties. For sixteen (16) months a pleading and compliance documents stood on this file in the 2nd Respondent's name. They were never disowned, never struck out, and no complaint was ever made to the Court or to the Claimant. Conduct of that character admits of only one inference. 19. In Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR the Court of Appeal held that it is not enough for a party in litigation simply to blame the advocates on record for all manner of transgressions in the conduct of the litigation, and that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel. If, as is now alleged, advocates pleaded for the 2nd Respondent without its authority, that grievance lies against those advocates. 20. The basis for arresting the proceedings and re-opening the case has not been demonstrated. Claimant relies on the authority cited by applicant urging that it defeats the application: Samuel Kiti Lewa v Housing Finance Company of Kenya Limited & another [2015] eKLR, in which Kasango J. held that the discretion to reopen a case must be exercised judiciously; that re-opening must not embarrass or prejudice the opposite party; that it will not be MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 4

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allowed where it is intended to fill gaps in evidence; and that the prayer will be defeated by inordinate and unexplained delay. 21. Claimant urges the application has denied 21 months after service of the Claim, 5 months after the close of the parties' cases. The period between that alleged discovery of cause and the filing of the draft response lacks a draft introduced only later, with a telling heading "JOINT RESPONSE", showing it's an afterthought. The draft is a bare traverse that discloses no triable issue. 22. The claimant will suffer if the case is re-opened as fresh hearing will be setting this matter back considerably with unnecessary expense and hardship to claimant who had already prosecuted his to conclusion. That delay in an employment cause, is itself a denial of justice and is not curable by an order for costs. 23. The claimant will suffer if the case is re-opened as fresh hearing will be setting this matter back considerably with unnecessary expense and hardship to claimant who had already prosecuted to conclusion. That delay in an employment cause, is itself a denial of justice and is not curable by an order for costs. 24. The claimant submits case of Agrigreen Consulting Corp Limited v National Irrigation Board [2020] eKLR is distinguishable from the case at hand as that case concerned a judgment entered in default, where the affidavit of service was the only material before the Court and had, on its face, to demonstrate compliance with Order 5 Rule 3(a). No default judgment was entered here, unlike in this cause which claimant urges was defended. Notice is shown not only by the affidavit of service but also by the conduct of the defence itself. Any irregularity in service, which claimant denies was in any event waived by with 2nd respondent pleading and taking part in the proceedings without protest. It cannot afterwards be heard to complain of the manner of service. The 2nd Respondent was represented and participated in these proceedings. 25. On 11th March 2025 the firm of Ngonze & Ngonze Advocates came on record EKB-2" and Response to the Memorandum of Claim dated 22nd April 2025 was drawn and filed on behalf of both the 1st and the 2nd Respondents: EKB-3". The list and bundle of documents and the witness statements were likewise filed on MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 5

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behalf of both Respondents "EKB-4"). Counsel was present for 28th October 2025 and 26th February 2026. Both respondents have been represented. In the claimants submissions: ISSUES FOR DETERMINATION are set out: a) whether the 2nd Respondent was served with the Memorandum of Claim; b) whether the 2nd Respondent was represented and participated in these proceedings; c) whether any basis has been laid for arresting the proceedings and re-opening the case; and costs of application. 26. ANALYSIS AND FINDINGS: The application for determination of the 2nd respondent, that is P.N. Mashru. The First respondent is Albarakat Agencies Ltd. Albarakat is the first respondent. Application is filed through the firm of Nyanje Luganje asking the court to reopen this cause so that P. Mashru can be allowed to appear in the matter, file a response to the claim and participate in the proceedings. The motion for July 2026 is grounded on allegations that there was no service of the pleadings upon P.N Mashru at all and that the suit or the matter proceeded to trial without involving the said Company P.N. Mashru, in the cause. 27. The application and the supporting affidavit by one, Mr. Mulili, and the further affidavit filed. In the further affidavit the applicant, has attached a copy of a draft response that P.N Mashru will file should the court grant leave as sought. 28. The application is opposed by the claimant. He has filed a replying affidavit opposing the application, urging the court to dismiss the same and find that the second respondent has participated in these proceedings, considering the documents that have been filed and evidence on record. 29. The court has considered both parties' submissions and the affidavits in support of the application and the affidavit opposing the application. 30. The question of service impugned by the applicant: affidavit of Daniel sworn in 2024. A look at that affidavit shows the process server visited offices of P. N. Mashru at Blue Jay building and someone informed him that P.N Mashru offices and Albarakat offices are in the same building and the said companies work as one and therefore received the documents and stated that they received for both companies. MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 6

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31. The process server thus served documents upon that one company. It appears to court that the process server took the word of the person and left with their documents stamped by Albarakat Agencies only assuming that Albarakat and P.N Mashru are working together and therefore service upon one is service upon the other. That admission in the affidavit of service for 2024. There is a notice of appointment that was filed by the firm of Ngonze & Ngonze on behalf of Albarakat Agency only the 1st respondent. 32. It is factual that there is no notice of appointment and there is no memorandum of appearance that has been filed on behalf of P.N Mashru, applicant in this matter in the current application. 33. Technically, the advocate did appear for one party only: first respondent from that notice of appointment filed. There was no notice of appointment of advocate until the notice that was filed by the law firm of Nyanje Luganje Advocates, that is now seek to have the case reopened to allow P. N.Mashru to defend the matter. It is a fact thus that as of the time, the suit proceeded to trial, February 2026, and both cases were had and closed, the claimant's case and the respondent's cases, P.N.Mashru has no pleadings, no memorandum of appearance and no notice of appointment. 34. That being said, practically there is a response to claim filed by the respondents jointly. The response is quite elaborate, very detailed. Therefore while technically the applicant has not appeared, there is a joint response to the statement of claim lodged through Ngonze and Ngonze advocates. 35. A look at the paragraphs where averments are in respect of both respondents very many paragraphs. The response to the claim is for and on behalf of both respondents. 36. Following that Response there is a witness statement that has been filed and which was relied upon by the respondents in this case. A witness statement by Ismail Mohammed. In that statement, which was adopted by the witness, who testified as DW1, in the case. The witness categorically states that he is wellversed with the matters that are the subject of this cause, and he is competent to give that information contained in the statement on behalf of both companies. MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 7

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37. The fact that there is no memorandum of appearance on behalf of P.N Mashru, and in fact, Ngonze & Ngonze advocates later ceased acting, specifically for Al-Barakat 1st respondent. 38. While it is a fact that P.N Mashru has not filed anything by itself, there is a response that has been filed for both respondents, and the evidence that was given was given for both respondents. 39. The question that Ngonze was not instructed to act for P.N Mashru, has been considered. While that might be true from what is before the Court from the affidavit that have been filed in support of the current application and the further affidavit, there is not a single document that has been filed by the applicant, P.N. Mashru shows that the said company took any action to correspond with Ngonze & Ngonze to complain that the said firm purported to act for the 2nd respondent without its instructions. Such conduct would obviously be a serious issue. If an advocate was to act for a client without that client's instructions, and then it turns out that the suit is actually determined against that client, a serious professional issue arises. 40. There is no single document or correspondence between P. N. Mashru and Ngonze & Ngonze Advocates that would indicate there was any question that has arisen at all as to the issue of representation. 41. Applicant alleges that it only came to learn of this suit when, as an advocate who is now acting for the applicant, just happened to have been looking through the causelist, and the advocate noticed that suit listed and then informed P. N. Mashru about this matter. 42. That sounds to this court to be quite an incredible coincidence, that it just happens that 2 years down the line, when this matter had gone to trial and set down for judgment, that an advocate happened to see the cause listing, and that is how P.N. Mashru learnt of the cause. 43. This court finds the incredible coincidences quite hard to believe. Nothing at all grounds the contention that the firm of Ngonze & Ngonze had no instructions to act for the 2nd respondent, except for the question that the notice of MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 8

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appointment filed by the said firm was specifically in respect of 1st respondent. 44. That aspect limits the court's ability to find categorically that Ngonze & Ngonze was instructed to act for both respondents. There is a joint response which has been filed and parties have moved on, especially the claimant has moved on, believing that the respondents have a joint defense/response to the claim, he went to tender his evidence in the matter and he has been crossexamined in the case cannot be ignored. 45. In the cause of trial, the claimant case was laid bare: the strength of his case or the weakness of his case have been exposed to the respondents and the respondents seemed to have been acting together by virtue of the pleading which they have filed in court. The joint Response has not been struck out, and the applicant has not shown that the Response should be expunged from the record. 46. Parties are bound by their pleadings and there is that pleading on behalf of P.N Mashru, whether it was filed without instructions or not, that is a question that now will lie elsewhere and maybe a question for professional conduct as between client and advocate. 47. Before this court, Ngonze consistently appeared for both respondents and as a result the claimant proceeded with the matter to trial without seeking to have any directions issued in respect of P.N Mashru as a party in default. 48. The state of things now is that a party claims not to have participated and yet on the record, and technically it does appear that the party might not have given instructions given that notice of appointment was filed by only 1 respondent but Joint Response is filed. 49. In the Response and the evidence that was given at a glance without considering the merits as yet, the evidence given by Ismail Mohammed personnel supervisor, Al-Barakat is an outsourcing agent for 2nd respondent. Ismael’s statement and the joint response to the claim are very specific: Al-Barakat is the party responsible on issues of engagement, employment and deployment of the claimant, not P.N. Mashru. On basis of the Response filed MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 9

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by the respondents jointly and counsel participation the claimant took no steps against P.N Mashru fas one in default. Al-Barakat, 1st first respondent does not from a cursory look as the evidence tendered raised any contention that P.N Mashru is the party that had an employer-employee relationship with the claimant though claimant was deployed to P. N. Mashru at the time in question. That the statement of the witness DW1 and the joint Response when looked against the draft response the applicant has annexed, and the stage this matter is at, cause pending since 2024, that only went to trial in February 2026, hardly raises any divergent positions that would prejudice the 2nd respondent if not granted leave to file the same . the draft response only filed after the claimant raised issue about lack of a draft response can be sum up that P.N Mashru’s answer to the claim is that the claimant was never its employee and that the claimant was an employee of Albarakat Agencies. That is in paragraph 4 of the draft response. That is essentially what is contained in the joint response filed in 2025 through the firm of Ngonze & Ngonze advocates for both respondents. 50. This court finds from the joint response and draft response applicant wishes to belatedly file, these two parties have a commonality of defence in approaching the claim. In the circumstances, would it be just to exercise this court's discretion to reopen this case in the manner sought by the applicant? 51. The applicant is seeking that the case be reopened so that the applicant, that is P.N Mashru, be allowed to file a response to the claim; file a witness statement & whichever documents to support its cases; thereafter matter to be tried. Essentially that is to claw back everything in terms of the court processes that have been achieved so far. 52. If the court was to say yes to the application by the 2nd respondent, it would mean that the matter is starting afresh. 53. In the circumstances of this case, it is just to only allow limited reopening of the cause. A reopening as sought by the applicant would be prejudicial to the claimant. 54. The question to determine in the circumstances is whether reopening the case as sought by the applicant: setting aside MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 10

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proceedings, filing Response and witnesses’ statements then the retrial of the case, is just exercise of this court's discretion. Is it consonant with the overriding objective? Has the applicant shown compelling ground to warrant this court to claw back and set back the progress claimant has achieved in a cause that has been pending since 2024? 55. The claimant testified and he was cross-examined as did the respondents’ only witness. The strength and weaknesses of the parties' cases have been laid bare through the rigors of trial. Is it just now to allow a party who practically participated through counsel in the proceedings to now file a separate Response to claim, witness statements and the cases to be heard afresh? 56. There is prejudice to be suffered by the claimant. Anything pleadings filed after evidence has been tendered through contested trial will give the party an unfair advantage. 57. The argument that applicant has no gaps to fill because it did not participate in the matter is a veiled attempt to ignore the substance; that actually the 2nd respondent has its case put forward in pleadings: Joint Response to claim filed through counsel then on record for the 1st respondent. 58. The advocate Ngonze participated on behalf of both respondents to the point of closing submissions being filed. 59. A look at the draft response annexed to further affidavit shows the 2nd respondent's case in answer to the claimant's is that claimant was never its employee and was in fact an employee of the 1st respondent. Paragraph 4 of the draft response is the crux of the defence 2nd respondent wishes to put forward if granted leave. 60. On the question of the substantive merited issue that the applicant wishes to advance that has not been pleaded in the joint response filed allegedly without 2nd respondent’s authority? The joint Response to claim aptly raises that defence. 61. The court has discretion to make orders as justice demands. This court finds that it is just in the circumstances to decline to the reopening of the cause in the manner sought by the applicant. The application would in fact have been declined entirely but for the admission in the affidavit of service of Daniel that only 1 MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 11

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respondent was served, and the party accepted service on behalf of the other. 62. In the interest of justice, in order to allow the applicant to bring out any facts that may bolster its position that it never employed the claimant and that claimant was employed by the 1st respondent, this court will allow reopening of the cases for the limited purpose of granting 2nd respondent opportunity to cross examine the claimant and the 1st respondent's witness DW1. Proceedings in this case were regularly taken and therefore shall not be set aside. Reopening in this case is necessitated by the respondents’ fault in their approach to this claim. It is just to reopen this case to a limited extent, not to the extent that has been sought by the applicant. The court reopens the cause for the limited purpose of allowing PN Mashru now having engaged its own advocate, to further cross-examine the claimant and 1st respondent’s witness Ismail Mohammed, personnel supervisor as may be necessary. 63. Thereafter parties to file submissions. The court declines leave for any response to claim and witness statements to be filed by the applicant because the draft that has been attached raises nothing new that was not raised in the joint response to the claim already been filed and which has been relied upon by the witness DW 1 who testified. No new documentary evidence will be admitted. The proceedings remain intact. 64. The situation that exists is by reason of the respondent's own doing. Cost of this application are awarded to the claimant against the respondents. Matter be mentioned on 22/10/2026 for directions. Leave to appeal granted 30days of today. Notice to issue. RULING DATED, SIGNED & DELIVERED THIS ..29th DAY of SEPTEMBER 2026 IN PRESENCE OF: For claimant: Kanazi ………PRESENT. Odunga & Associates Advocates For 1st respondent: ABSENT For 2nd respondent: …ABSENT. Nyanje Luganje & Company Advocates. Court assistant: Wesonga & Zulekha T.N SINKIYIAN, PRINCIPAL MAGISTRATE MARIAKANI ELRC E040 OF 2024 MARIAKANI/ RULING REOPENING CASE 12

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