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ELRCAllowedNot stated in judgment

Bwanamzee & another (Suing for and on Behalf of the Estate of Bwanamzee Mohamed – Deceased) v Ready Consultancy Company Limited & another (Miscellaneous Application E023 of 2025) [2025] KEELRC 1908 (KLR)

Employment and Labour Relations Court
26 June 2025
1,077 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court set aside a default judgment because the claimants hid evidence of a Ksh. 3.4 million payment when they obtained it.

What this practically means

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Executive summary

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The 2nd respondent, Old Mutual Limited, applied by notice dated 2 April 2025 to set aside an ex parte judgment entered on 10 March 2025 and for unconditional leave to file a response. Through its legal officer, Joy Muthoka, it admitted proper service but attributed non-filing of a response to delays in transmitting the summons from its Mombasa office to Nairobi. It asserted a viable defence: discharge vouchers dated 29 July 2022 and a remittance of Ksh. 3,406,216 on 3 August 2022 constituted full and final settlement of the applicants' claim arising from a DOSH award. The applicants opposed through Munira Munyiva Mwanamzee, a co-administrator of the estate of the late Bwanamzee Mohamed, arguing the judgment was regular, the remittance advice was not proof of full payment, and the application was an afterthought; they sought a deposit of Ksh. 4,104,016 if leave were granted. The court held that setting aside an ex parte judgment is a discretionary exercise governed by principle, not sentiment, requiring the applicant to show reasonable cause (citing Ikuuni Hotel Ltd and Feroz Begum Qureshi). Despite proper service, the attached evidence of payment — a fact not disclosed in the applicants' original application — constituted sufficient and reasonable cause to revisit the judgment in the interests of justice. The application was allowed, the ex parte judgment set aside, leave to file a response granted within 7 days, and costs of Ksh. 20,000 awarded to the applicants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 2nd respondent has shown sufficient and reasonable cause to set aside the ex parte judgment entered on 10 March 2025 and be granted leave to file a response
  2. 2.Whether the payment of Ksh. 3,406,216 evidenced by discharge vouchers and a remittance advice justifies revisiting the ex parte judgment
  3. 3.What costs orders should issue

Key legal issues

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01

Whether sufficient cause existed to set aside the ex parte judgment despite proper service

Holding

Yes. Although service was proper and the 2nd respondent failed to attend in time, the evidence of payment of Ksh. 3,406,216 not disclosed in the original application justified revisiting the judgment in the interests of justice.

Reasoning

The court framed setting aside ex parte orders as a discretionary exercise governed by established principles, requiring reasonable cause and a burden of disclosure on the applicant. Service and non-attendance would ordinarily leave the judgment regular, but the record attached to the application revealed a crucial fact — payment against a discharge voucher — which the applicants had withheld from the original application. Non-disclosure of such material meant the judgment was obtained without the full picture, so the ends of justice required re-examination of the claim on the merits rather than holding parties to a judgment founded on incomplete disclosure.

p. 3
02

Whether the remittance advice and discharge voucher established payment in full

Holding

The court did not finally determine this; it held only that the attached evidence raised material sufficient to justify setting aside the judgment and letting the matter be heard on the merits.

Reasoning

The 2nd respondent contended it had paid Ksh. 3,406,216 under discharge vouchers dated 29 July 2022 as full and final settlement, remitted on 3 August 2022. The applicants argued a remittance advice alone was insufficient proof of full and final payment. The court found the evidence 'crucial material' warranting re-examination but expressly left its sufficiency for determination at the inter partes hearing, directing the 2nd respondent to file a response within 7 days.

p. 3

Legal principles established

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  • Setting aside an ex parte judgment is an exercise of judicial discretion that must be exercised on evidence and sound legal principles, not sentiment or sympathy, and the applicant bears the burden of disclosing the relevant material.
  • An applicant for setting aside must satisfy the court that there is reasonable cause for doing so.
  • Non-disclosure by the decree-holder of a material fact (payment) in the original application constitutes sufficient and reasonable cause to revisit an ex parte judgment.

Court orders

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  1. 1.Application dated 2 April 2025 allowed
  2. 2.Judgment entered on 10 March 2025 set aside
  3. 3.2nd respondent to file and serve a response upon the applicants and 1st respondent within 7 days, with 14 days right of reply to the other parties
  4. 4.Hearing date to be allocated at the registry
  5. 5.Applicants awarded costs of Ksh. 20,000

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12(4), read together with Rule 70(4) of the Employment and Labour Relations Court (Procedure) Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is clear, therefore, that the decision to grant the orders sought—specifically, the request to set aside the ex parte judgment herein and the permission to file a reply to the main application—is an exercise of discretion.
p. 2Nature of discretion to set aside ex parte judgment
The applicants did not disclose the payment of Ksh. 3,406,216 in their original application, leading to the judgment herein. Therefore, suficient and reasonable cause exists for the court to revisit the matter.
p. 3Sufficient cause from non-disclosure of payment
Accordingly, the application dated 2 April 2025 is with merit and is hereby allowed. Judgment herein is set aside; the 2nd respondent shall file and serve a response upon the applicants and 1st respondent within 7 days from the date herein to allow 14 days right of reply.
p. 3Final orders and disposition

Issues in the judgment

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minor

The judgment does not state the case number, court station or the names of the 1st applicant and 1st respondent; parties' roles are inconsistently described (applicants, 2nd respondent, 1st respondent).

minor

The replying affidavit refers to 'the respondents' being directed to deposit Ksh. 4,104,016, an amount not explained elsewhere in the judgment.

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, "Bwanamzee & another (Suing for and on Behalf of the Estate of Bwanamzee Mohamed – Deceased) v Ready Consultancy Company Limited & another (Miscellaneous Application E023 of 2025) [2025] KEELRC 1908 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1908/eng@2025-06-26

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