[2013] KEELRC 334 (KLR)
The court found that while the respondent was served with the memorandum of claim and summons to enter appearance, the hearing notice for the date the case proceeded was erroneously served on a different school (Gilgil Girls Secondary School) and not the respondent. This procedural error denied the respondent an...
Source-derived case information.
- Citation
- [2013] KEELRC 334 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA Workers); Respondent: B.O.G Gilgil Day Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 5 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Judgment
- Outcome
- application to set aside judgment allowed
- Judges
- B Ongaya
- Legal Topics
- Service of Process, Setting Aside Judgment, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA Workers)
Applicant
B.O.G Gilgil Day Secondary School
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the respondent was properly served with the hearing notice and other court documents.
- 2 Whether the judgment delivered on 12.02.2013 should be set aside due to improper service and denial of opportunity to be heard.
- 3 Whether the respondent's draft statement of response raises triable issues.
Ratio Decidendi
The court found that while the respondent was served with the memorandum of claim and summons to enter appearance, the hearing notice for the date the case proceeded was erroneously served on a different school (Gilgil Girls Secondary School) and not the respondent. This procedural error denied the respondent an opportunity to be heard as ordered by the court. The court also found that the respondent's draft statement of response raised triable issues. Consequently, the court exercised its discretion to set aside the judgment delivered on 12.02.2013 and all consequential processes, while ordering the respondent to pay the claimant's costs up to the date of the ruling and to file and serve...
Court Disposition
application to set aside judgment allowed
Orders
- The judgment delivered on 12.02.2013 and all processes flowing from it are set aside.
- The respondent shall pay the claimant's costs of the case up to the date of this ruling.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
Cause 5 of 2013 [if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif]
KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL
INSTITUTIONS, HOSPITALSAND ALLIED WORKERS
(KUDHEIHA WORKERS)..................................................................................CLAIMANT
V
B.O.G GILGIL DAY SECONDARY SCHOOL................................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 17th May, 2013)
RULING
The court delivered the judgment in this case on 12. 02. 2013. The respondent filed the notice of motion on 23. 04. 2013 under certificate of urgency seeking the setting aside of the judgment on the ground that the respondent had not been served and the respondent should be given an opportunity to be heard in view of its intended defence that raises serious triable issues. The application was supported by the affidavit of the respondent’s secretary Peter Mbugua Kibury sworn on 22. 04. 2013. The claimant opposed the application through the replying affidavit of Hezron Onwong’a sworn on 6. 05. 2013 and filed on 07. 05. 2013.
The application was heard on 10. 05. 2013. The respondent’s secretary and the process server Peter Mwangi Njoroge were examined on the issue of service and the following facts emerged.
a)The hearing of the case proceeded on 29. 01. 2013. The process server admitted that he served the hearing notice for that date upon the Gilgil Girls Secondary School and not the respondent being Gilgil Day Secondary School. The court record shows that the claimant erroneously interchanged the two schools as the respondent in this cause with the consequence that the judgment has in fact been erroneously entered against the Gilgil Girls Secondary School.
b)On 23. 11. 2011 the Deputy Principal of the respondent was served the hearing notice for the hearing scheduled on 12. 07. 2012 but the respondent did not take any steps to attend court or to enter appearance.
c)The respondent’s secretary denied service of the memorandum of claim and the summons to enter appearance but admitted that Mercy as mentioned in the affidavit of service to have received the documents on 7. 10. 2011 was his personal secretary. On a balance of probability and taking into account the affidavit of service sworn on 10. 10. 2011, the court finds that the memorandum of claim and the summons to enter appearance were served.
The court has considered the draft statement of response on record and finds that it raises triable issues. The court has also considered that the respondent failed to take due steps to comply with the rules of the court to defend the case. However, the hearing proceeded on a date when the respondent had not been served by the claimant to attend as ordered by the court on 29. 01. 2013. In the circumstances of this case, the court makes orders as follows:
1. The judgment delivered in this case on 12. 02. 2013 and all the processes flowing from the judgment are set aside.
2. The respondent shall pay in any event, the claimant’s costs of the case up to the date of this ruling.
3. The respondent shall file and serve the memorandum of response and copies of all relevant documents by close of 24. 05. 2013.
4. The claimant is at liberty to file and serve a reply to the memorandum of response by close of 31. 05. 2013.
5. Parties to agree upon a convenient mention date for directions on the hearing of the case.
Signed, datedanddeliveredin courtatNakuruthisFriday, 17th May, 2013.
BYRAM ONGAYA
JUDGE
[if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]