[2020] KEELRC 761 (KLR)
The court found that the Respondents were properly served with the summons, pleadings, and notice of entry of judgment, as evidenced by affidavits of service on record. The Respondents did not dispute the service of the notice of entry of judgment and failed to summon the process-server for cross-examination. The...
Source-derived case information.
- Citation
- [2020] KEELRC 761 (KLR)
- Parties
- Applicant: Salif Michael Ndunguli; Applicant: Jacob Katumo Musyoki; Applicant: Nzomo Muluve Fredrick; Applicant: Pauline Khadiori; Applicant: Ibrahim Alumera Amimo; Applicant: John Nyaga Ireri; Applicant: Kelvin Murithi Njeru; Applicant: Kavesa Nary Mutua; Applicant: Gladys Akinyi Oduor; Applicant: Miland Njogu; Applicant: Alice Achieng’ Ochieng’; Applicant: David Thoya Ndurya; Applicant: Dennice Odwor Odhiambo; Respondent: Hui Commercial Enterprise [Africa] Company Limited a.k.a. Hui Commercial EPZ Limited; Respondent: Wrony Wang
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 394 of 2018
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Default Judgment
- Outcome
- Application to set aside default judgment rejected. Costs awarded to the Claimants.
- Judges
- J Rika
- Legal Topics
- Service of Process, Default Judgment, Setting Aside Judgment, Redundancy, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salif Michael Ndunguli
Applicant
Jacob Katumo Musyoki
Applicant
Nzomo Muluve Fredrick
Applicant
Pauline Khadiori
Applicant
Ibrahim Alumera Amimo
Applicant
John Nyaga Ireri
Applicant
Kelvin Murithi Njeru
Applicant
Kavesa Nary Mutua
Applicant
Gladys Akinyi Oduor
Applicant
Miland Njogu
Applicant
Alice Achieng’ Ochieng’
Applicant
David Thoya Ndurya
Applicant
Dennice Odwor Odhiambo
Applicant
Hui Commercial Enterprise [Africa] Company Limited a.k.a. Hui Commercial EPZ Limited
Respondent
Wrony Wang
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Default Judgment
Legal Issues
- 1 Whether the Respondents were properly served with summons and pleadings.
- 2 Whether the Respondents have disclosed a reasonable defence to the Claim.
- 3 Whether the affidavit in support of the application is reliable and sufficient.
Ratio Decidendi
The court found that the Respondents were properly served with the summons, pleadings, and notice of entry of judgment, as evidenced by affidavits of service on record. The Respondents did not dispute the service of the notice of entry of judgment and failed to summon the process-server for cross-examination. The Respondents' draft defence did not disclose a reasonable response to the claim, as it merely denied redundancy and failed to provide documentary evidence of any invitation for the Claimants to resume work. Furthermore, the supporting affidavit by Phillip Sadhi Mrima was found unreliable because it did not disclose his position or authority in relation to the Respondents....
Court Disposition
Application to set aside default judgment rejected. Costs awarded to the Claimants.
Orders
- The application dated 27th October 2019 filed by the Respondents is rejected.
- Costs to the Claimants.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 394 OF 2018
BETWEEN
1. SALIF MICHAEL NDUNGULI
2. JACOB KATUMO MUSYOKI
3. NZOMO MULUVE FREDRICK
4. PAULINE KHADIORI
5. IBRAHIM ALUMERA AMIMO
6. JOHN NYAGA IRERI
7. KELVIN MURITHI NJERU
8. KAVESA NARY MUTUA
9. GLADYS AKINYI ODUOR
10. MILANDI NJOGU
11. ALICE ACHIENG’ OCHIENG’
12. DAVID THOYA NDURYA
13. DENNICE ODWOR ODHIAMBO
VERSUS
1. HUI COMMERCIAL ENTERPRISE [AFRICA]
COMPANY LIMITED a.k.a. HUI COMMERCIAL
EPZ LIMITED
2. WRONY WANG
RULING
1. Judgment was delivered in favour of the Claimants, on 26th September 2019.
2. The Respondent did not participate in the trial.
3. The Respondent filed an application on 25th October 2019, asking the Court to set aside default Judgment delivered on 26th September 2019, on the ground that the Respondent was not served with the summons and the pleadings.
4. Supported by the affidavit of Phillip Sadhi Mrima, sworn on 27th October 2019, the Respondent alleges it only became aware of the proceedings upon being notified of Judgment, on 1st October 2019.
5. The application is opposed. The Claimants rely on the affidavit of their Advocate Laura Mbithe, filed on 7th November 2019.
The Court Finds:-
6. Paragraph 4 of the Judgment observes that service of the initial summons and pleadings was effected upon the Respondents. There is an affidavit of service on record. There was no appearance or response filed. The matter was set down for hearing by way of formal proof. It was observed that though not obligated to serve notice of formal proof hearing under the E&LRC [Procedure] Rules 2016, the Claimants served the Respondents nonetheless. The Respondents did not attend Court, or file anything in response. They were served notice of entry of Judgment. They do not dispute this service. Yet the same process-server who served the initial summons- Andericus Otieno Odera served the notice of entry of Judgment. There is a long affidavit sworn by this officer on 7th November 2019, detailing service. The officer has not been summoned for cross-examination by the Respondents. The Court has no reason to doubt service.
7. Secondly there is no reasonable response to the Claim, disclosed in the draft statement attached to the application. The Respondents merely deny the Claim, stating there was no redundancy as claimed by the Claimants. They confirm the position by the Claimants that they were asked to leave because business was down. They state that the Claimants were to resume duty, but declined resumption when the Respondent opened its factory in September 2018. There is no document inviting the Claimants back to work, shown anywhere by the Respondents. It is noted that the Claim was filed on 12th June 2018.
8. Thirdly and lastly, Philip Sadhi Mrima, does not disclose what he is, to the Respondents. It is not sufficient to tell the Court that he is a representative of the Respondents. He must state what position he holds, and how that position, relates to the matters under enquiry. His affidavit cannot be relied upon by this Court.
It is ordered:-
a. The application dated 27th October 2019 filed by the Respondents is rejected.
b. Costs to the Claimants.
Dated, signed and delivered under Rule 38 of the E&LRC [Procedure] Rules, 2016 and the Covid-19 Judiciary Guidelines this 29th day of June 2020
James Rika
Judge