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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ex-parte judgment and orders of 4 February 2025 adopting the DOSH award were obtained irregularly for want of service of summons
- 2.Whether the respondent made out a good defence warranting setting aside of the ex-parte judgment
Key legal issues
#Whether service of summons was properly effected
Service by email to the respondent's website address and by Fargo courier to its premises was proper and unchallenged
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.
Whether the respondent established a good defence justifying setting aside the ex-parte judgment
Even where service is proper, a judgment may be set aside if a good response is shown; here none was offered
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.
Legal principles established
#- 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
#- 1.Application dated 5 February 2025 dismissed
- 2.Costs to the applicant/respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, Rule 69 (enforcement of DOSH award)
Relief refused
#Setting aside the ex-parte judgment and orders of 4 February 2025 and admission of the proceedings for hearing on merit
Service was properly effected by email and courier, unchallenged by the respondent, and no draft defence or response was offered
Costs
Costs to the applicant/respondent
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 respondent does not contest the averments in the Afidavit of Service. There is no case that the email address used to efiect service is irregular or in default.
The judgment can be set aside where a good response exists.
Application dated 5 February 2025 is without merit and is hereby dismissed. Costs to the applicant/ respondent.
Issues in the judgment
#The party designations are confusingly reversed in places; the judgment describes the claimant/applicant as 'the applicant' but also as 'the applicant/respondent', and refers to Baobab Beach Resort as 'the respondent' though it filed the setting-aside application described as by 'The respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.