https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2045

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **CAUSE NO E709 OF 2026** **MARY WAGA KI MUTHUMBI…………………………………CLAIMANT** **VERSUS** **NEWGEN SOFTWARE TECHNOLOGIES LIMITED…....RESPONDENT** **RULING** 1. The Claimant has filed the application dated 22nd June 2026 seeking leave of the court to serve Summons to Enter Appearance in the cause on the Respondent out of jurisdiction. Further, she prays that she be allowed to effect service of the court processes on the Respondent through a reputable courier firm in the first instance and subsequently through email. She also prays for the matter to be heard on priority basis. 2. The application is premised on the grounds on the face thereof and the affidavit of the Claimant. She contends that the Respondent is registered in the Republic of India (a Commonwealth member) and has no physical presence or agency in Kenya. 3. The Claimant avers that the Respondent engaged her as its Regional Manager in Kenya with effect from 1st March 2022. However, she avers that it (the Respondent) irregularly terminated the contract of service on 22nd September 2025. 4. The Claimant contends that the employment contract between them provided that their relationship was to be governed by the laws of India and that any dispute arising therefrom was to be adjudged by courts in India. However, she alleges that the contract was performed in Kenya where she is ordinarily resident. As such, she contends that it (the contract) is amenable to the laws of Kenya and that disputes arising therefrom ought to be adjudged by a Kenyan court. 5. The Claimant avers that during her term of service, the Respondent communicated with her through the email addresses which she has set out in the application and her affidavit. As such, she prays that she be allowed to effect subsequent court processes through the aforesaid email addresses. 6. However, she asks that she be allowed to serve the initial court processes through an international courier firm. She contends that this will remove any doubt regarding service of the processes. 7. The Claimant further prays that her case be heard on priority basis because of the myriad challenges she is facing. Without going into details, the challenges relate to financial constraints. She blames this state of affairs on her job loss. 8. The law relating to service of court processes outside the court’s jurisdiction is encapsulated in Order 5 of *the Civil Procedure Rules*. Rule 21 of the Order sets out the circumstances under which one may serve court processes out of jurisdiction. On the other hand, rule 22 thereof provides that the procedure set out in rules 25, 26, 27, 28 and 30 shall apply *mutatis mutandis* to service of any process out of jurisdiction. 9. Rule 25 provides as follows:- *‘’Every application for leave to serve such summons or notice on a defendant out of Kenya shall be supported by affidavit or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is not resident in Kenya or not, and the grounds on which the application is made; and no such leave shall be granted unless it is made sufficiently to appear to the court that the case is a proper one for service out of Kenya under this Order.’’* 1. Rule 26 provides as follows:- *‘’Any order giving leave to effect such service or give such notice shall limit a time after such service or notice within which such defendant is to enter an appearance; such time to depend on the place or country where or within which the summons is to be served or the notice given.’’* 1. Rule 27 provides as follows:- *‘’Where leave to serve a summons or notice of summons out of Kenya has been granted under rule 21, and the defendant is a Commonwealth citizen as defined in subsections (1) and (2) of section 95 of the Constitution or resides in any of the countries for the time being mentioned in subsection (3) of that section, the summons shall be served in such manner as the Court may direct.’’* 1. Rule 28 provides as follows:- *‘’Notice of summons shall be in Form No. 6 of Appendix A with such variations as the circumstances require.’’* 1. Rule 30 provides as follows:- *‘’The court may direct that any summons, order or notice shall be served on any party or person in a foreign country, and the procedure prescribed by rule 27, with reference to service of notice of a summons, shall apply to service of any summons, order or notice so directed to be served.’’* 1. Rule 29 sets out the procedure for effecting service of court processes out of jurisdiction once leave to do so is granted. It provides as follows:- 2. *the notice to be served shall be sealed with the seal of the High Court for use out of Kenya, and shall be forwarded by the Registrar to the Minister for the time being responsible for Foreign Affairs together with a copy thereof translated into the language of the country in which service is to be effected, and with a request for the further transmission of the same through the diplomatic channel to the Government of the country in which leave to serve notice of the summons has been given; and such request shall be in Form No. 7 of Appendix A with such variations as circumstances may require;* 3. *the party bespeaking a copy notice of summons for service under this rule shall, at the time of bespeaking the same, file a praecipe in Form No. 8 of Appendix A;* 4. *an official certificate, or declaration upon oath, or otherwise, transmitted through the diplomatic channel by the government or court of a foreign country to which this rule applies, to the High Court shall, provided that it certifies or declares the notice of the summons to have been personally served, or to have been duly served upon the defendant in accordance with the law of such foreign country, or words to that effect, be deemed to be sufficient proof of such service, and shall be filed on record as, and be equivalent to, an affidavit of service within the requirements of these Rules in that behalf;* 5. *where an official certificate or declaration, transmitted to the High Court in the manner provided in paragraph (c), certifies or declares that efforts to serve a notice of summons have been without effect, the court may, upon the ex parte application of the plaintiff, order that the plaintiff be at liberty to bespeak a request for substituted service of such notice; and such order shall be in Form No. 9 of Appendix A, with such variations as circumstances may require;* 6. *a request for substituted service of a notice of summons under this rule may be bespoken by the plaintiff at the department where summonses are issued upon filing a praecipe in Form No. 8 of Appendix A, and the notice of summons and copy of the same, and the order, shall be sealed and transmitted to the Minister in the manner aforesaid together with a request in Form No. 10 of Appendix A, with such variations as circumstances may require.* 7. In the alternative, the law also provides for service of such processes by a recognized international courier service provider. Order 22A of *the Civil Procedure Rules*, which speaks to this, provides as follows:- *‘’Internationally registered and recognized courier services [Order 5, rule 22A]* 1. *Summons may be sent to the Defendant by way of registered courier service provider; service shall be effected only with the leave of the Court through an internationally registered and recognized courier service provider to the defendant's last known physical address.* 2. *Service shall be deemed to have been effected when the person being served acknowledges receipt by affixing his signature on the document or on confirmation of delivery by the courier service provider.* 3. *An officer of the court duly authorized to effect service shall file an Affidavit of Service attaching the way bill receipt or consignment note from the courier service provider confirming service.* 4. *An affidavit of service shall be proof enough that service was effected, even if the person being served declines to acknowledge receipt.’’* 5. Having regard to the foregoing, the court is satisfied that the Claimant’s request for leave to serve the Summons to Enter Appearance on the Respondent out of jurisdiction through a recognized courier service provider is permissible in law (see also ***Vijay Kant Walia & another v Shalini Dacunha & 4 others [2015] KEELC 596 (KLR)*** & ***Motaung v Samasource Kenya Epz Ltd t/a Sama & 2 others; Kenya National Human Rights and Equality Commission & 9 others (Interested Parties) [2024] KEELRC 7 (KLR)***). As such, the court allows her to serve the court processes on the Respondent through either DHL or FedEx. In effecting the aforesaid service, the Claimant shall proceed strictly in accordance with the requirements of Order 5 rule 22A of *the Civil Procedure Rules*. 6. Once served, the Respondent will have 45 days to enter appearance and file a defense, if at all. The enlargement of time within which the Respondent is to enter appearance and file a response to the claim is in recognition of the fact that the service is effected in a foreign jurisdiction and the Respondent is entitled to sufficient time to present the aforesaid pleadings. 7. The Claimant has further prayed for service of subsequent court processes through email. However, the court declines this request. Any other process that requires service on the Respondent shall be delivered through a recognized international courier service provider as sanctioned by Order 5 rule 22A of *the Civil Procedure Rules*. 8. The Claimant has further prayed for hearing of the case on priority. However, the court declines this request. This cause is not dissimilar to several other cases which are pending resolution by the court. As such, it will be discriminatory to accord it preferential treatment. Consequently, the suit will be adjudicated as per the schedule of the matters pending resolution by the court. 9. Having said thus, the court notes that the contract between the parties makes reference to the law that is to be applied to it (the contract) and the court which ought to handle disputes arising from the contract. As such and notwithstanding the Claimant’s preliminary view that this court has jurisdiction, the court directs that the first business for resolution shall be to determine whether it (the court) indeed is seized of jurisdiction over the dispute. Consequently, once pleadings close, the parties will be required to submit on this issue in order for the court to determine it at the earliest. 10. The Claimant is directed to extract and serve this order on the Respondent alongside other court processes in the cause. **Dated, signed and delivered on the 16th day of July, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant **ORDER** **In light of the directions issued on 12th 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 rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**