[2018] KEELRC 2544 (KLR)
The court found that there were material lapses in the service of the hearing notice upon the respondent. Although the claimant attempted to serve the respondent's advocates at the address provided in the Memorandum of Appearance and Statement of Response, the process servers' returns indicated inconsistencies in...
Source-derived case information.
- Citation
- [2018] KEELRC 2544 (KLR)
- Parties
- Claimant: Caleb Libwege Eboyi; Respondent: John Kashangaki
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 451 of 2014
- Procedural Posture
- Employment Cause / Ruling on Validity of Service and Setting Aside Proceedings
- Outcome
- proceedings set aside; fresh hearing directions to be taken
- Legal Topics
- Service of Process, Ex Parte Hearing, Setting Aside Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caleb Libwege Eboyi
Claimant
John Kashangaki
Respondent
Procedural Posture
Employment Cause / Ruling on Validity of Service and Setting Aside Proceedings
Legal Issues
- 1 Whether service of the hearing notice upon the respondent was properly effected in accordance with procedural requirements.
- 2 Whether the proceedings held on 31st May, 2017 should be set aside due to lapses in service of process.
Ratio Decidendi
The court found that there were material lapses in the service of the hearing notice upon the respondent. Although the claimant attempted to serve the respondent's advocates at the address provided in the Memorandum of Appearance and Statement of Response, the process servers' returns indicated inconsistencies in the place of service. The advocates on record had not formally ceased to act, and no notice of change of advocates had been filed. The absence of the respondent and their advocates from court, coupled with the procedural irregularities in service, undermined the fairness of the proceedings. To uphold the integrity of the judicial process and ensure that justice is not only done...
Court Disposition
proceedings set aside; fresh hearing directions to be taken
Orders
- Proceedings held on 31st May, 2017 are set aside.
- The respondent to be served at the address set out in the Memorandum of Appearance and Statement of Response.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT
NAIROBI
CAUSE NO.451 OF 2014
CALEB LIBWEGE EBOYI ....................................... CLAIMANT
VERSUS
JOHN KASHANGAKI ........................................ RESPONDENT
RULING
The matter herein is due for judgement following hearing of the claimant’s case on 31st May, 2017.
In preparing the judgement, I have gone through the records and established that The claimant filed his Memorandum of Claim on 21st March, 2014 and the respondent entered appearance and filed a Statement of Response on 8th May, 2014.
When the matter came up for hearing on 31st May, 2017 the respondent was absent despite being served and Affidavit of Service filed by Mary Gatavi Njue setting out that the respondent’s Advocates W&M Advocates were served on 17th November, 2016 with the Hearing Notice but declined to accept service on the grounds that they no longer represented the respondent.
I have gone through the record, and ascertained that the firm of W&M Advocates entered appearance for the respondent nad remain on record as the legal representatives of the respondnet in this matter. There is no change of advocates or notice by the respondent to act in person.
The Hearing Notices have been served and returns filed and the court heard the claimant on his evidence.
Going back to the pleadings and returns, in the defence and appearance of the respondent’s Advocates I note the following;
Address of service shall be Care of:
W & M Advocates,
Haven Court,
Apratment A8,
Waiyaki Way,
P.O. Box 3849900623
Nairobi.
In the Affidavit of Service filed by the claimant and sworn by Mary Gatavi Njue on 10th May, 2017 the deponent avers that service was effected upon the respondent’s advocates on 17th November, 2016 but declined to accept the same on the grounds that they no longer represented the respondent.
Upon scrutiny of the Affidavit of Service, service of the hearing notice was effected upon the firm of M & W Advocates. The place of service is noted as;
Miraj Tower 3,
1stfloor
Westlands off Chiromo Road
Next to Villa Rosa,
Nairobi.
The Hearing Notice attached to the Affidavit of Mary Gitavi Njue is to the effect that service is to be effected upon;
W & M Advocates,
Haven Court, Apartment A8,
Waiyaki Way, Westlands.
P.O. Box 3849900623
Nairobi.
Similar returns are herein made by Process Server and person of George Omondi and Mary Gitavi Njue noting the Hearing Notices be serviced upon the respondent’s advocates at;
Haven Court, Apartment A8,
Waiyaki Way, Westlands.
But the Process Servers returns notes they both were at;
Miraj Tower 3, 1stfloor
Westlands off Chiromo Road
Next to Villa Rosa,
I find material lapses leading to the hearing of the claimant on the scheduled date on 31st May, 2017. The returns made on service upon the respondent following the claimant taking an ex parte hearing date are not procedural. Such erode the course of justice noting the non-attendance of the respondent or the advocates on record. Both remained absent from court on various dates when the matter came up in court. to proceed with judgement noting the above lapses would negate the essence of seat of justice.
Accordingly, proceedings held on 31stMay, 2017 are hereby set aside. Serve the respondent accordingly at the address set out in the Memorandum of Appearance and Statement of Response. Take fresh hearing directions before the Duty Judge.
Dated at Nairobi this 18thday of May, 2018.
M. MBARU JUDGE
In the presence of:
…………………………………
………………………………..