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ELRCDismissedNot stated in the judgment· [2025] KEELRC 809 (KLR)

Kalama v Baobab Beach Resort Mombasa (Kenya) Limited; Director of Occupational Health and Safety Services (Interested Party) (Miscellaneous Application E046 of 2024) [2025] KEELRC 809 (KLR)

Employment and Labour Relations Court
13 March 2025
MMM. Mbarũ
1,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to overturn a Ksh.1.2 million workplace injury judgment against Baobab Beach Resort because the hotel never showed it had a defence.

What this practically means

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Executive summary

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The respondent, Baobab Beach Resort Mombasa (Kenya) Limited, applied by notice dated 5 February 2025 to set aside ex-parte judgment and proceedings of 4 February 2025, by which default judgment was entered against it enforcing a Director of Occupational Safety and Health Services (DOSH) award of Ksh.1,238,515.20 in respect of a workplace injury suffered by the claimant on 26 August 2019, assessed at 40% disability. The respondent argued that no summons was served to enable it to enter appearance or defend the enforcement proceedings, rendering the judgment irregular and liable to be set aside as a matter of right, relying on James Kanyiita Nderitu v Marios Philotas Ghikas and Sammy Maina v Stephen Muriuki. The claimant countered that service was effected by email to the respondent's website address and by Fargo courier, confirmed by an unchallenged Afidavit of Service of Henry Omwenga, advocate, and that Rule 69 of the ELRC (Procedure) Rules was applied. The court found service proper and unchallenged, and further held that even where an ex-parte judgment is properly entered, it may be set aside on proof of a good defence - but the respondent offered none beyond its supporting affidavit. Applying Mburu v Barclays Bank, Kotecha & Sons and Tree Shade Motors, the court dismissed the application dated 5 February 2025 and awarded costs to the applicant/claimant.

Key legal issues

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01

Whether service of summons was properly effected

Holding

Service by email to the respondent's website address and by Fargo courier to its premises was proper and unchallenged

Reasoning

The Afidavit of Service of Henry Omwenga, advocate, dated 3 February 2025, showed service by email on 30 January 2025 to the address on the respondent's website, and by Fargo courier on 1 February 2025. The respondent did not contest the averments in the affidavit, did not allege the email address was irregular, and did not challenge the courier service.

p. 3
02

Whether the respondent established a good defence justifying setting aside the ex-parte judgment

Holding

Even where service is proper, a judgment may be set aside if a good response is shown; here none was offered

Reasoning

The court accepted the principle that an ex-parte judgment can be set aside where the respondent has a good response. However, apart from the supporting affidavit, the respondent offered no draft defence or response to the DOSH enforcement proceedings, so the application failed.

p. 3

Legal principles established

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  • An irregular default judgment entered without proper service should be set aside as a matter of right
  • A regular default judgment may be set aside where the party tenders a draft defence raising a reasonable defence

Court orders

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  1. 1.Application dated 5 February 2025 dismissed
  2. 2.Costs to the applicant/respondent
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, Rule 69 (enforcement of DOSH award)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kalama v Baobab Beach Resort Mombasa (Kenya) Limited; Director of Occupational Health and Safety Services (Interested Party) (Miscellaneous Application E046 of 2024) [2025] KEELRC 809 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/809/eng@2025-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.