https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1650

Bundi v Kiaraho (Cause E748 of 2022) [2026] KEELRC 1650 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1650 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E748 of 2022 HS Wasilwa, J June 18, 2026 Between Peter Njonja Bundi Claimant and Jackie Kiaraho Respondent Ruling 1.The Respondent/ Applicant filed a Notice of Motion application dated 27th February 2026 seeking orders: -1.That there be a stay of execution of the Judgment delivered on 30th October, 2025 and Decree issued on 4th November, 2025 and all consequential processes thereto, including execution pursuant to the Notice of Execution dated 27th January, 2026 pending the hearing and determination of this Application.2.That there be a stay of execution of the said Judgment and/or Decree pending reconciliation, verification, and tabulation of the Claimant’s alleged terminal dues in accordance with the Judgment.3.That there be a stay of execution pending the Respondent’s internal deliberations and compliance processes relating to the Claimant’s reinstatement, as directed by the Court.4.That the Court be pleased to issue such further or alternative orders as it may deem fit and just in the circumstances.5.That the costs of this Application abide the outcome of the cause. Respondent/Applicant’s Case 2.The Applicant avers that she learnt of the existence of this suit for the first time on 26th February, 2026, when auctioneers from Mamalo Auctioneers visited her residence at 51 Mimosa Close, Runda Estate, Nairobi and proclaimed her movable property pursuant to a Warrant of Attachment dated 28th January, 2026, issued in execution of a Decree arising from an ex parte Judgment delivered on 6th March, 2025 in favour of the Claimant for Kshs. 992,146.60 plus interest and costs, totalling Kshs. 1,009,718.00. 3.It is the Applicant's case that prior to the said proclamation, she had no knowledge whatsoever of the suit, the Claimant's Statement of Claim dated 6th September, 2022, or any proceedings herein, as she was never served with any summons, pleadings, or court documents. 4.The Applicant contends that upon perusing the court file and the impugned Judgment through her Advocates, she noted two purported Affidavits of Service filed by the Claimant. The first, sworn by Grace Wanjiku Mwaura on 20th November, 2023, alleges service via WhatsApp on mobile number 07XXXXXX46, with "two grey ticks" as evidence of service, which she denies receiving. The second, sworn by the same deponent on 16th April, 2024, alleges personal service on 11th April, 2024 at her residence but concedes that the documents were left with a security guard named "Ben" at the gate. The Applicant however avers that no such documents were ever brought to her attention. 5.The Applicant states that the irregular service denied her the opportunity to defend the suit, resulting in an ex parte Judgment that is liable to be set aside to prevent a miscarriage of justice. 6.She further denies any direct employment relationship with the Claimant, averring that the Claimant alleged engagement as a casual night guard at Jadav Gardens, Tigoni through a third-party private security firm and not by her personally, and that she did not know the Claimant in person. 7.It is the Applicant's case that the Claimant's allegations of continuous employment from 1st April, 2015 to 31st November, 2020 are false, as the engagement was intermittent and casual in nature and does not qualify for conversion under the Employment Act, 2007. 8.She further contends that the Claim is time-barred under the Employment Act, 2007, as it seeks remedies for events more than three years prior to the filing of the suit in 2022. 9.The Applicant avers that the termination, if any, was justified on account of the Claimant's failure to prevent a felony on the premises on 10th October, 2020, which led to his lawful arrest and investigation by the police. 10.She states that she acted with utmost diligence upon learning of the Judgment and that any delay is not wilful but is an unfortunate consequence of the failure to serve her, and that her failure to file a defence was therefore not deliberate. Further, failure to serve a Respondent in a suit, as was the case herein, warrants the setting aside of the Judgment. 11.The Applicant asserts that Mamalo Auctioneers ought to be joined to the proceedings as they are directly involved in the execution and their presence is necessary for complete resolution of the matter. 12.She contends that unless the orders sought are granted, she will suffer irreparable harm through the imminent auction of her property, whereas the Claimant will suffer no prejudice that cannot be compensated by an award of costs if the application is allowed. Claimant/Respondent’s Case 13.In opposition to the application, the Claimant/Respondent filed a replying affidavit dated 16th March 2026. 14.The Respondent avers that the Applicant's allegation that she was never served with pleadings or summons is entirely untrue and a deliberate attempt to mislead the Court. 15.He contends that the pleadings and summons to enter appearance were personally served upon the Applicant physically by the Advocate on record for the Claimant, thereby placing the Applicant on full notice of the proceedings. 16.The Respondent further avers that in addition to physical service, the Applicant was also served with the pleadings and court documents through WhatsApp messaging to her Safaricom mobile number 07XXXXXX46, a number known to belong to and be actively used by the Applicant, and that the said messages were successfully delivered to the Applicant's device as evidenced by the delivery indicators on the messaging platform. He states that screenshots of the WhatsApp communication clearly demonstrate the transmission and successful delivery of the court documents to the Applicant through the said number. 17.It is the Respondent's case that the Applicant had actual knowledge of these proceedings but deliberately chose to ignore the same and refused to enter appearance or file any defence, consequent upon which this Court proceeded to hear the matter and a regular Judgment was lawfully entered on 6th March, 2025. 18.He avers that following delivery of Judgment, the Applicant was served with the Decree and execution notices through the same WhatsApp number, which messages were also successfully delivered, and which she again chose to ignore. 19.The Respondent contends that following issuance of lawful warrants of attachment, Mamalo Auctioneers attempted to reach the Applicant through telephone calls to notify her of the execution process, but the Applicant deliberately refused to answer or respond to the said calls, further demonstrating her intention to evade lawful court process. 20.He thus asserts that the Applicant cannot honestly claim that she only became aware of the matter after the proclamation by the auctioneers. 21.He further avers that the subject matter of the suit occurred in 2020, the Applicant was served with a letter of demand in 2021 through Njenga Wanyoike Advocates which she also ignored, and the suit was filed in 2022 well within the statutorily provided time. He states that a formal proof hearing was held on 30th January, 2025 at which he tendered his evidence. 22.It is the Respondent's case that electronic service through messaging platforms such as WhatsApp has been recognised and accepted by Kenyan courts as a valid mode of service, particularly where delivery confirmations confirm receipt by the recipient, and that the Applicant has not denied ownership or use of the mobile number 07XXXXXX46, with the WhatsApp delivery confirmations clearly demonstrating that the documents reached her device. 23.The Respondent further contends that the Applicant has failed to annex any draft Statement of Defence demonstrating the existence of any arguable or triable issue that would warrant the Court exercising its discretion to set aside the Judgment, and that the law is settled that a regular judgment ought not to be set aside merely to assist a party who has deliberately ignored court process. 24.He asserts that the application is an afterthought brought in bad faith solely for the purpose of delaying, obstructing, and defeating the execution of a lawful Judgment obtained after due process, and that unless the application is dismissed, the Applicant will continue abusing the court process and unfairly deny the Claimant the fruits of the said Judgment. 25.It is the Respondent's case that it is in the interests of justice that the application be dismissed with costs and that the execution process be allowed to proceed without interruption. Applicant’s Submissions 26.The Applicant submitted on four issues: what is the test for setting aside an ex-parte/default Judgment; whether the Impugned Judgment was obtained irregularly due to defective or non-existent service; whether the Respondent/ Applicant has a good and arguable defence on the merits; whether the Application was brought without unreasonable delay; whether the Respondent/ Applicant is entitled to the prayers sought in the Notice of Motion dated 27th February 2026. 27.On the first issue, the Applicant submitted that the legal anchor for setting aside a judgment in default of defence is Order 10, Rule 11 of the Civil Procedure Rules as read with Order 10, Rule 10, which confers upon the Court discretion to set aside or vary a default judgment upon such terms as are just, to ensure justice is served where a party was unable to defend the suit in time. 28.She further submitted that the Court of Appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR drew a clear distinction between regular and irregular default judgments, holding that where a judgment is irregular, having been entered without proper service of the summons to enter appearance or pleadings, it is a nullity and must be set aside ex debito justitiae as of right, without any inquiry into triable issues or delay. 29.It is the Applicant's submission that the Court sets aside an irregular judgment as a matter of judicial duty to uphold the integrity of the process rather than as a matter of discretion, and that the impugned Judgment is patently irregular due to defective service, such that the Court is bound to set it aside as a matter of right. 30.On the second issue, the Applicant submitted that the purported service was wholly defective and did not comply with Order 5, Rule 1 of the Civil Procedure Rules, 2010, which expressly mandates that summons shall be served personally on the defendant. She argued that service via WhatsApp to mobile number 07XXXXXX46, evidenced only by "two grey ticks", was not authorized by any court order for substituted service under Order 5, Rule 17 and does not satisfy the requirements of Order 5, Rule 22C as introduced by the Civil Procedure (Amendment) Rules, 2020 Legal Notice No. 22 of 2020, which permits service by mobile-enabled messaging platforms such as WhatsApp only where the sender receives and exhibits a delivery receipt confirming actual receipt by the recipient. She submitted that mere delivery to a device as evidenced by grey ticks falls far short of proof of actual receipt or knowledge. 31.In support, the Applicant relied on the High Court ruling in Commission for Human Rights and Justice v Jacob Kimutai Torutt ^ 5 others [2021] eKLR, where the Court held that WhatsApp service without evidence of actual receipt or prior court authorization is invalid, and that service of court process via WhatsApp is only valid if it complies strictly with the said rules. 32.She further submitted that leaving the documents with a security guard named "Ben" at the gate of 51 Mimosa Close, Runda Estate does not amount to personal service or service on an authorized agent as required by Order 5, Rules 1 and 9 of the Civil Procedure Rules, 2010, Rule 9 permitting service at a residence only on an adult member of the defendant's family or an authorized agent, which a security officer stationed at the gate is not. 33.It is further the Applicant's submission that the failure to effect proper service denied her the fundamental constitutional right to a fair hearing under Article 50(1) of the Constitution, which guarantees that "every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court," and that adequate notice is an essential component of that right, rendering the entire proceedings a nullity ab initio. 34.On the third issue, the Applicant submitted that even if service were proper, which she denied, she has a good and arguable defence raising triable issues. She argued that she denies any direct employment relationship with the Claimant, who was engaged casually through a third-party private security firm on an intermittent basis and does not qualify for conversion to permanent employment under Section 37 of the Employment Act, 2007. 35.She further submitted that any termination was justified by the Claimant's misconduct, being his failure to prevent a felony on the premises on 10th October, 2020, which constitutes a valid ground for summary dismissal under Section 44(4)(c) of the Employment Act, and that the Claim is additionally partially statute-barred as it seeks remedies for events more than three years prior to the filing of the suit in 2022. She argued that these defences go to the root of the Claim and warrant a full inter partes hearing on the merits. 36.On the fourth issue, the Applicant submitted that she only became aware of the impugned Judgment and Warrant of Attachment on 26th February, 2026 upon the auctioneers' proclamation, and that she acted with utmost promptness by filing the urgent application on 27th February, 2026. She cited Shah v Mbogo [1967] EA 116, where the Court held that where a party only recently discovers a judgment due to irregular service, any delay is not attributable to willful default and does not bar the setting aside of the judgment. 37.On the final issue, the Applicant submitted that the Court retains jurisdiction under Rule 17 of the ELRC Rules and its inherent powers under Section 3A of the Civil Procedure Act to set aside the irregular Judgment, grant a stay of execution, issue a temporary injunction restraining the Claimant and Mamalo Auctioneers from proceeding with attachment and sale, join Mamalo Auctioneers as a necessary party, and grant the Applicant fourteen days to file her defence. 38.She argued that no prejudice will be occasioned to the Claimant, who will still have his day in Court on the merits, whereas the Applicant stands to suffer irreparable harm through the imminent auction of her movable property. 39.The Applicant submitted that the impugned Judgment is irregular and a nullity, having been obtained in blatant violation of her constitutional right to a fair hearing, and that upholding it would perpetuate a grave injustice. She accordingly prayed that the application dated 27th February, 2026 be allowed as prayed and that the Court give directions on the hearing of the suit. Respondent’s Case 40.The Respondent submitted on four issues: whether the Respondent/Applicant was duly served with pleadings and court process; whether the WhatsApp service constitutes a valid service under Kenyan law; whether the judgment of 6th March 2025 is a regular judgment; and whether the Respondent/Applicant has demonstrated sufficient cause to warrant the exercise of this Court's discretion to set aside the judgment. 41.On the first issue, the Respondent submitted that the Applicant's central allegation that she was never served with pleadings or summons is false and contradicted by documentary evidence. He submitted that service was effected in two ways, being first by personal physical service of the pleadings by the Advocate on record, and second by electronic service via WhatsApp to mobile number 07XXXXXX46, a number known to belong to the Applicant. 42.The Respondent submitted that the WhatsApp communication dated 18th September, 2023 annexed to the Replying Affidavit shows that a PDF of the pleadings was sent to the Applicant's number together with a clear message stating "Kindly find attached the above documents for your further actions. Kindly observe that this is proper service in accordance with the Civil Procedure Rules," and that the message bears a double-tick delivery indicator confirming successful delivery to the recipient's device. He further submitted that on 1st July, 2025, the Decree was transmitted via the same WhatsApp number with a message notifying the Applicant of the same, which message also bears double-tick delivery confirmation. 43.The Respondent argued that the Applicant has conspicuously declined to deny ownership or use of the number 07XXXXXX46, and that her silence on this material point speaks volumes, courts having consistently held that a party's failure to deny an averment within their personal knowledge may be treated as an admission thereof. 44.On the second issue, the Respondent submitted that electronic service via messaging platforms is recognized as valid in Kenyan jurisprudence, and that Order 5, Rule 22A of the Civil Procedure Rules, 2010 as amended permits alternative modes of service where personal service cannot be conveniently effected, which courts have extended to digital platforms where receipt can be confirmed. 45.The Respondent submitted that the delivery confirmation constitutes prima facie proof that the documents reached the Applicant's device. He argued that taken together with the prior personal physical service and the 2021 demand letter, it is incontrovertible that the Applicant had actual and constructive knowledge of the dispute and the proceedings at every material stage. 46.On the third issue, the Respondent submitted that a judgment is regular where it is entered in compliance with the procedural requirements of the court's rules, and that in the present matter the Claimant served the Applicant with pleadings and summons, the Applicant failed to enter appearance, a proof hearing was duly held on 30th January, 2025, and Judgment was delivered on 6th March, 2025, making this a textbook regular judgment. 47.He further submitted that the standard for setting aside a regular judgment is materially higher than for an irregular one, requiring the Applicant to establish not only an excuse for non-attendance but also to annex a draft Statement of Defence disclosing a reasonable and bona fide defence warranting the Court's intervention. 48.The Respondent argued that the Applicant has failed entirely to file or annex any draft Statement of Defence, and that this failure is fatal to the application, as without a defence disclosing an arguable issue the Court has no basis upon which to exercise its discretion to disturb a lawfully obtained judgment. 49.In support, the Respondent relied on Patel v EA Cargo Handling Services Ltd [1974] EA 75, where the Court of Appeal held that where an applicant fails to disclose the nature of their defence, the application to set aside ought to be dismissed, submitting that that principle applies squarely in the present case. He further relied on Shah v Mbogo [1967] EA 116, where the Court of Appeal held that the discretion to set aside a default judgment ought to be exercised in favour of a defendant where that defendant satisfies the Court that there is a prima facie defence, and critically that a court should not set aside a judgment if the defendant has no real defence to offer. 50.On the final issue, the Respondent submitted that the Applicant's conduct throughout the proceedings reveals a clear and consistent pattern of deliberate evasion, having ignored the 2021 demand letter, ignored the WhatsApp service of pleadings in 2023, ignored the Decree served in July 2025, refused to answer telephone calls from the auctioneers, and engaged the court process only after the proclamation of her property by Mamalo Auctioneers in execution of a lawful Decree. 51.He argued that such conduct, being strategic silence followed by last-minute applications once execution looms, constitutes an abuse of the court's process, and that to allow such conduct to succeed would set a dangerous precedent enabling judgment debtors to indefinitely frustrate the enforcement of lawful decrees by simply ignoring all court process and then claiming ignorance upon execution. 52.I have examined all the averments and submissions of the parties herein. The applicant has sought stay orders pending some reconciliation and internal negotiations. The stay is premised basically on some act by the applicant to either pay off or make some consultations which are not very clear as no appeal has been filed. Whatever the reasons, the stay of execution will be allowed to allow the applicant settle the claim under court’s supervision to avert any further miscarriage of justice. Costs on the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF JUNE, 2026.HELLEN WASILWAJUDGE