1.The 3rd respondent filed a notice of motion dated February 16, 2023 seeking orders that this honourable court:-a.spent
Applicant/ 3rd Respondent’s Case
2.The 3rd respondent’s application was supported with an affidavit dated February 16, 2023 and a further affidavit by Thomas Ndegwa dated March 7, 2023.
3.The 3rd respondent aver that she was never served with the pleadings and documents relating to the claim and that she only learnt of the suit when icon auctioneers on instructions of the claimants proclaimed her household goods on February 8, 2023.
4.The 3rd respondent aver that the 2nd respondent passed away on October 31, 2021 when the main suit was proceeding for hearing and determination and despite the 2nd, 3rd and 5th claimants being the 2nd respondent’s close relatives and they even attended the funeral, however, the claimants’ failed to inform the court of his death while the matter was ongoing.
5.That the 3rd respondent never employed the claimants and the claim is founded on the contents of a letter dated August 25, 2011 emanating from the 1st respondent therefore the claimants erred in including the 3rd respondent in this claim as she was not the author of the letter or responsible for its implementation.
6.Further, the aforementioned letter was not signed by the 2nd respondent as the 3rd respondent and her son Thomas Ndegwa are familiar with the 2nd respondent’s signature and the purported signature on the document forming the foundation of the claimants’ claim is not the 2nd respondent’s signature.
7.That arising from the ex parte judgment made by this court, the claimants instructed Icon Auctioneers who seek to proclaim the 3rd respondents household goods which are due for collection anytime.
8.The claimants filed a replying affidavit dated February 22, 2023 by the 1st claimant and a further replying affidavit dated February 10, 2023 by Tom Kayere in opposition to the 3rd respondent’s application.
9.The claimants aver that the respondents were duly served with summons to enter appearance and other documents relating to this suit by the process server, Tom Kayere at the 2nd and 3rd respondents residence at Muriu Gardens, Langata/Karen.
10.The process server avers that Thomas Ndegwa, son of the 2nd and 3rd respondent received the documents on their behalf but declined to sign on the copies.
11.The claimants aver that the 2nd and 3rd respondents as directors of the 1st respondent undertook to personally pay Kshs 5,207,291 to the claimants vide the letter dated August 25, 2011 executed by the 2nd respondent.
3rd Respondent/ Applicant’s Submissions
12.It was submitted for the 3rd respondent that she was never served with the summons to enter appearance, the statement of claim and any other documents filed in the claim or served with any mention or hearing notice and that the claimant have not disputed or provided any evidence to verify that she was indeed served. Further, 2nd, 3rd and 5th claimants are the 3rd respondents close relatives and never mentioned the existence of the claim during its pendency in court.
13.The 3rd respondent submitted that the claimants admitted they were employees of the 1st respondent and no time did the claimants aver the 3rd respondent employed them and therefore have no claim against her.
14.It was further submitted for the 3rd respondent that the claimants’ claim is based on the letter dated August 25, 2011 addressed to the District Labour Officer Nairobi that was allegedly executed by the 2nd respondent in which the 1st respondent’s directors admitted to owing the claimants Kshs 900,000/- and its directors undertook to settle the amount if the 1st respondent is unable to do so. The 3rd respondent submits that the claimants neither allege she signed the letter nor did they produce before this court any company resolution which would legally bind the 3rd respondent.
15.The 3rd respondent submitted that she has produced before this court documents signed by the 2nd respondent during his lifetime to show that the purported signature of the 2nd respondent on the letter dated August 25, 2011 is totally different. It is the 3rd respondent’s submission that this court will have a chance to examine this issue were the exparte judgment set aside as the 3rd respondent has a meritorious defence to the claim.
16.The 3rd respondent submitted that the claimants were employees of the 1st respondent, however, while instituting the claim the 2nd and 3rd respondents were directly sued as directors of the 1st respondent in contrary to trite law that a limited liability company is separate and distinct from its directors and shareholders and for the directors to be called the corporate veil must be lifted in accordance with the law as seen in Victor Mabachi & another v Nurtun Bates Limited  eKLR:-
17.It was submitted for the 3rd respondent that the exparte judgment entered was an irregular judgment for want of service and the 3rd respondent has demonstrated she has a credible response to the claimants’ claim and deserves a right to be heard. Further, the claimants will suffer no prejudice as they will be accorded an opportunity to prosecute their claim in the presence of the 3rd respondent.
18.The claimants’ submit that the court documents were duly served upon Thomas Ndegwa on behalf of the applicant who ignored them but now having realised the consequences of that conduct wishes to say the process server lied in his detailed affidavit before this court and having been duly served, the judgment obtained against the 3rd respondent/ applicant was regular. The claimants relied on HCCC 1058 of 2000 Charles Mwalia v Kenya Bureau of Standards and Patel v East African Cargo Services Ltd EA 75.
19.The claimants submitted that the court’s discretion should not be exercised in favour of the applicant as she was served the court papers in 2016 and ignored service therefore she deliberately sought to evade and delay the cause of justice.
20.The claimants submitted that they are strangers to the goings of the 1st respondent and are aware the letter dated August 25, 2011 was written by the 2nd respondent who was the managing director of the 1st respondent then and whether or not he had authority to do so should not be the claimants concern as it was set out in Royal British Bank v Turquand (1856) 6 E&B 327. That even if the 3rd respondent was unaware of the letter she is bound by it.
Analysis and Determination
21.The 3rd respondent submitted that the exparte judgment entered against her was an irregular judgment for want of service, however, the claimants’ vide a further affidavit sworn by the process server aver that the summons to enter appearance were served and received on behalf of the respondents by the 2nd and 3rd respondents’ son.
23.This begs the question whether there was proper service to the respondents. The claimants submitted that the respondents were served the summons to enter appearance and the pleadings which were received by the 2nd and 3rd respondents’ son, Thomas Ndegwa. However, he refused to sign on the document to confirm receipt of the summons and pleadings.
25.Order 5 rule 12 of Civil Procedure Rules, 2010 states: -Service on agent or adult [order 5, rule 12] Where in any suit, after a reasonable number of attempts have been made to serve the defendant, and defendant cannot be found, service may be made on an agent of the defendant empowered to accept service or on any adult member of the family of the defendant who is residing with him.”
26.In consideration of the above, the process server did not show that he made a reasonable number of attempts to serve the respondents before the 2nd and 3rd respondent’s son accepted service on behalf of his parents. In his affidavit dated February 10, 2023, he went to the 2nd and 3rd respondent’s residence and 1st respondent’s office only twice and on the date of service to the son he was duly informed the 2nd and 3rd respondents were in the house but he still decided to serve their son instead on insisting to serve either of them personally.
27.Against this background, this court hold the service was improper and thereby rendering the ex parte judgment irregular.
28.Furthermore, the claimants proceeded with the hearing whereas the 2nd respondent had already died and yet did not substitute him or even inform the court.
29.Another point is that there is no proof that the claimants had an employer/employee relationship with the 3rd respondent. Infact in their claim they said they worked with the 1st respondent. The claimants did not lift the corporate veil in order to justify the 3rd respondent as a party to the proceedings.
30.In view of the above anomolous this court is satisfied that the ex parte judgment dated December 10, 2022 should be set aside and so orders the same be set aside and the case to proceed for hearing afresh.
31.The court will proceed with pre-trial hearing on October 4, 2023 and proceed to set the case for hearing.
32.Claimants will meet the costs of this application.Orders accordingly.