Dunman v Athi Stores Limited
The bottom line
#A Kenyan employment court set aside a Kshs. 3.95 million default judgment against a company, but only on strict payment conditions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent/Applicant demonstrated sufficient cause to warrant setting aside the ex parte interlocutory and final judgment of 19th December 2024
- 2.Whether the Applicant was served with summons and pleadings, rendering the judgment regular or irregular
- 3.Whether the Applicant's delay of nearly ten months in approaching the court was excusable
- 4.Whether the draft defence raises triable issues warranting a hearing on the merits
- 5.Whether a temporary stay of execution should be granted
Key legal issues
#Sufficiency of cause for setting aside the ex parte judgment
The court exercised its discretion in favour of setting aside notwithstanding its finding that the averment of no service lacked proof
The court found the affidavits of service established service, so the applicant's claim of non-service was unproved. Nonetheless, invoking the interest of justice and natural justice, the court chose to set aside the judgment so the respondent could defend the claim, imposing conditions of thrown away costs and a deposit of the decretal sum within 60 days to protect the claimant.
Conditional setting aside and reinstatement upon default
Judgment set aside on condition of thrown away costs and deposit of the decretal amount in a joint interest-earning account within 60 days, failing which the judgment stands reinstated
Balancing the applicant's right to be heard against the claimant's interest in the fruits of judgment, the court attached two conditions: thrown away costs of Kshs. 100,000 and deposit of the awarded sum in a joint interest-earning account in the joint names of counsel within 60 days, with automatic reinstatement of judgment and execution upon default.
Legal principles established
#- A court may set aside an ex parte judgment, even where service is asserted, to ensure justice is done and seen to be done, on conditions protecting the decree holder
Court orders
#- 1.Application allowed; the ex parte judgment entered on 19th December 2024 is set aside
- 2.Respondent/Applicant to pay the claimant thrown away costs of Kshs. 100,000
- 3.Respondent to deposit the amount awarded in a joint interest-earning account in the joint names of counsels on record within 60 days, in default the judgment will stand reinstated and execution may proceed
- 4.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Employment and Labour Relations Court to set aside ex parte judgment, under the ELRC (Procedure) Rules read with Order 10 Rule 11 of the Civil Procedure Rules
Relief refused
#Unconditional setting aside of judgment
Setting aside made conditional on thrown away costs and deposit of the decretal amount as security
Costs
Thrown away costs of Kshs. 100,000 payable by the Applicant to the Claimant; costs in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The averment that there was no service is found without proof.
in order to ensure that justice is not only done but is seen to be done and to allow the respondents defend this case, I will allow the application and set aside the ex parte judgment entered against them on condition that the respondents applicant pays to the claimant thrown away costs of kshs 100,000
The respondent is directed to further deposit the amount awarded in a joint interest earning account held in join names of counsels on record within 60 days in default the judgment will stand reinstated and execution may proceed. Costs in the cause.
Issues in the judgment
#Signature block reads 'HELLEN WASILWA' while coram reads 'HS WASILWA'
Ruling dated September 2026 but neutral citation year and application dated 2026 consistent; no material contradiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dunman v Athi Stores Limited", Case Analysis (2026). Employment and Labour Relations Cause E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2601/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.