[2025] KEELRC 597 (KLR)
The court found that the Claimant's Advocate used an incorrect e-mail address for service, which was not among the addresses provided by the Respondent in the Memorandum of Appearance. The affidavits of service were inconsistent, with one referring to a mention notice rather than a hearing notice, and the notice...
Source-derived case information.
- Citation
- [2025] KEELRC 597 (KLR)
- Parties
- Applicant: Rose Naliaka; Respondent: Diamond Trust Bank Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause E059 of 2021
- Procedural Posture
- Setting Aside Application / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application allowed; ex parte judgment set aside; claim to be heard afresh; no order as to costs
- Judges
- J Rika
- Legal Topics
- Service of Process, Ex Parte Judgment, Setting Aside Judgment, Electronic Service, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Naliaka
Applicant
Diamond Trust Bank Kenya Limited
Respondent
Procedural Posture
Setting Aside Application / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether service of hearing and mention notices upon the Respondent was proper and in accordance with the rules.
- 2 Whether the ex parte judgment should be set aside due to defective service.
- 3 Whether the Claim should be heard afresh with participation of both parties.
Ratio Decidendi
The court found that the Claimant's Advocate used an incorrect e-mail address for service, which was not among the addresses provided by the Respondent in the Memorandum of Appearance. The affidavits of service were inconsistent, with one referring to a mention notice rather than a hearing notice, and the notice itself being labeled as a hearing notice. These defects in service meant that the Respondent was not properly notified of the hearing, violating Rule 26 of the E&LRC (Procedure) Rules 2024, which requires service to the last confirmed and used e-mail address. The court concluded that the ex parte judgment was obtained without proper service and, in the interest of justice and...
Court Disposition
application allowed; ex parte judgment set aside; claim to be heard afresh; no order as to costs
Orders
- The application dated September 17, 2024 filed by the Respondent is allowed.
- Ex parte judgment made on July 11, 2024 is set aside.
Full Case Text
Judgment text and source record
30 paragraphs
Naliaka v Diamond Trust Bank Kenya Limited (Cause E059 of 2021) [2025] KEELRC 597 (KLR) (28 February 2025) (Ruling)
Neutral citation: [2025] KEELRC 597 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nakuru
Cause E059 of 2021
J Rika, J
February 28, 2025
Between
Rose Naliaka
Claimant
and
Diamond Trust Bank Kenya Limited
Respondent
Ruling
1. This Claim was heard in the absence of the Respondent, on 25th April 2024 and 30th May 2024.
2. Judgment was made in favour of the Claimant on 11th July 2024, granting her a total sum of Kshs. 1,538,786, consisting compensation for unfair termination, and 1-month salary in lieu of notice.
3. The Respondent has filed an application, dated 17th September 2024, asking the Court to set aside the ex parte Judgment, and that the Claim is heard afresh, with the participation of both parties.
4. The application is supported by the affidavit of the Respondent’s Advocate, Chacha Odera, sworn on 17th September 2024.
5. The main grounds in the application are that, service of the mention and hearing notices, was flawed; and that an undated affidavit of service filed by the Claimant, indicates a mention notice, not a hearing notice, was served upon the Respondent.
6. The Claimant is opposed to the application relying on her affidavit, sworn on 4th October 2024. She states that service of the mention and hearing notices upon the Respondent, was flawless. She somewhat incoherently, submits that the Respondent failed to provide updated contact information, which contributed to Respondent’s non-attendance.
7. Parties confirmed filing and exchange of submission on 7th November 2024. Highlighting of submissions was scheduled for 28th November 2024. Ms. Kadima highlighted the submissions filed by the Respondent. There was no appearance for the Claimant at the highlighting, on 28th November 2024.
The Court Finds: - 8. The Respondent’s Advocates gave their e-mail addresses, in the Memorandum of Appearance dated 15th December 2021.
9. Three e-mail addresses are stated, the first one being legal@oraro.co.ke . The various affidavits of service filed by the Claimant’s Advocate, Francis Makori Omenta, successively indicate that service was made upon the Respondent, at legal@oraroco.ke .
10. Obviously, the Claimant’s Advocate used an incorrect e-mail address.
11. The notice dated 13th March 2024, which the Claimant’s Advocate states, he forwarded to the Respondent’s Advocates on 13th March 2024, used the incorrect e-mail address. Secondly, the undated affidavit of service, indicates that the Claim was coming up for mention on 25th April 2024, not for hearing. The notice itself is indicated to be a hearing notice.
12. The recipient, even if a correct address of service had been used, would not have received a proper notice, given the inconsistences in the affidavit of service.
13. Rule 26 of the E&LRC (Procedure) Rules 2024, regulates service of summons by electronic mail. It requires that a summons sent by electronic mail service, shall be sent to the Respondent’s last confirmed and used e-mail.
14. The Respondent’s e-mail addresses were as shown in the Memorandum of Appearance. There was no other address given subsequent to the filing of the Memorandum of Appearance.
15. It is not clear to the Court what the Claimant meant, in her submission that, ‘’the Respondent failed to provide updated contact information, which contributed to the non-attendance.’’ She appears to concede in this oblique statement, that she used the incorrect address for service upon the Respondent, occasioning non-attendance on the part of the Respondent.It is ordered: -a.The application dated September 17, 2024 filed by the Respondent, is allowed.b.Ex-Parte Judgment made on July 11, 2024 is set aside.c.The Claim shall be heard afresh, on a date to be fixed at the Registry.d.No order on the costs.
DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, THIS 28TH FEBRUARY 2025. JAMES RIKAJUDGE