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Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment

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
1,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

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.

Questions the Court framed

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

  1. 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. 2.Whether the respondent made out a good defence warranting setting aside of the ex-parte judgment

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

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 (Procedure) Rules, Rule 69 (enforcement of DOSH award)

Relief refused

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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

p. 3

Costs

Costs to the applicant/respondent

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.

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.
p. 3service by email and courier
The judgment can be set aside where a good response exists.
p. 3setting aside default judgment
Application dated 5 February 2025 is without merit and is hereby dismissed. Costs to the applicant/ respondent.
p. 3disposition

Issues in the judgment

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minor

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

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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.