China Road and Bridge Corporation v Mboo (Appeal 5A of 2020) [2025] KEELRC 515 (KLR)

Although the record of appeal did not contain the affidavits of service, the proceedings before the trial court showed the Appellant was properly served and aware of the proceedings. Its representatives received hearing notices and its HR Manager attended court on 28th March, 2018, secured an adjournment by consent, and a hearing date of 20th June, 2018 was fixed by consent. The ex parte judgment was therefore regular.

The Appellant never sought to withdraw, replace or amend the defence on record, and its fresh defence was rejected. It could not argue on the basis of a defence never admitted on record. The Appellant did not contest the trial court's finding that the defence on record raised no triable issues, which this court accepted as the correct position. A good defence would not have prompted the filing of another defence.

The Appellant argued the claim was a preserve of the Director of Occupational Safety and Health under section 23 of WIBA. The court noted the issue was raised for the first time on submissions, not in the grounds of appeal. Even if jurisdiction may be raised at any time, the 2015 accident predated the Court of Appeal's decision in Attorney General v Law Society of Kenya, so the prevailing law reinstated common-law claims for work injuries.

Relying on Patel v EA Cargo Handling Services, Shah v Mbogo, Mbogo v Shah and Pithon Waweru Maina v Thuka Mugiria, the court restated that the main concern is to do justice; the discretion is intended to avoid injustice from inadvertence or excusable mistake, not to reward evasion; and an appellate court will not interfere with the exercise of discretion unless the judge was clearly wrong. The Appellant, having failed to acknowledge obvious errors, did not merit the exercise of discretion in its favour.