[2022] KEELRC 13522 (KLR)
The court found that the applicant had made reasonable and diligent efforts to serve the respondent personally, including visiting the respondent's last known offices and attempting contact by phone, but these efforts were unsuccessful as the offices remained closed and the respondent could not be reached. In light...
Source-derived case information.
- Citation
- [2022] KEELRC 13522 (KLR)
- Parties
- Applicant: Nancy Muthoni Mwangi (suing on behalf of the Estate of James Gathedi Mwangi – Deceased); Respondent: Sea-Link Logistics Contractors & Manpower
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E049 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substituted Service
- Outcome
- application allowed
- Judges
- AK Nzei
- Legal Topics
- Substituted Service, Service of Process, Court Procedure, Employment Disputes
- 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
Nancy Muthoni Mwangi (suing on behalf of the Estate of James Gathedi Mwangi – Deceased)
Applicant
Sea-Link Logistics Contractors & Manpower
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Substituted Service
Legal Issues
- 1 Whether the applicant should be granted leave to serve the respondent by way of substituted service through the respondent's last known postal address.
- 2 Whether the circumstances justify substituted service due to inability to effect personal service.
Ratio Decidendi
The court found that the applicant had made reasonable and diligent efforts to serve the respondent personally, including visiting the respondent's last known offices and attempting contact by phone, but these efforts were unsuccessful as the offices remained closed and the respondent could not be reached. In light of these circumstances and pursuant to rule 11(8) of the Employment and Labour Relations Court (Procedure) Rules 2016, the court held that service by registered post to the respondent's last known postal address was justified and appropriate. The application for leave to serve by substituted service was therefore allowed as prayed.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to serve the respondent by way of substituted service through the respondent’s last known postal address, being PO Box 40259 -80100 Mombasa.
- Costs to be provided.
Full Case Text
Judgment text and source record
21 paragraphs
Mwangi (suing on behalf of the Estate of James Gathedi Mwangi – Deceased) v Sea-Link Logistics Contractors & Manpower (Miscellaneous Application E049 of 2022) [2022] KEELRC 13522 (KLR) (13 December 2022) (Ruling)
Neutral citation: [2022] KEELRC 13522 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Miscellaneous Application E049 of 2022
AM Katiku, J
December 13, 2022
Between
Nancy Muthoni Mwangi
Applicant
suing on behalf of the Estate of James Gathedi Mwangi – Deceased
and
Sea-Link Logistics Contractors & Manpower
Respondent
Ruling
1. On October 24, 2022, the applicant filed a notice of motion dated October 14, 2022 seeking orders:a)That leave be granted to the applicant to serve the respondent by way of substituted service through the respondent’s last known postal address, being PO Box 40259 -80100 Mombasa.b)That costs be provided.
2. It is stated, both in the application and in the supporting affidavit of one Amos Kivisu Mutambi (a court process server) sworn on the aforesaid date:-a)That the physical location of the respondent cannot be traced by the said court process server.b)That relying on Dosh-1 Form,the court process server called No 0712632525 and spoke to the respondent’s representative, who received the call, confirmed having known the deceased, but directed the court process server to serve the insurance, and subsequently switched off the phone.c)That the court process server was subsequently directed to the respondent’s offices in Mombasa by the Director of Occupational Safety and Health Services (Mombasa), and that the said offices have remained closed, making (physical) service impossible.
3. Service of court process by registered post is contemplated in rule 11(8) of the Employment and Labour Relations Court (Procedure) Rules 2016 which provides:-“where service of pleadings under these Rules is effected through registered carrier, the affidavit of service shall be accompanied by the certificate of mailing.”
4. The application is merited, and the same is hereby allowed as prayed.
5. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 13TH DAY OF DECEMBER 2022AGNES KITIKU NZEIJUDGEORDERIn view of restrictions on physical Court operations occasioned by the COVID-19 Pandemic, this Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of Court fees.AGNES KITIKU NZEIJUDGEAppearance:N/A for ApplicantN/A Respondent