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ELRCDismissedNot stated in judgment

Wright Press Limited v Omolo (Employment and Labour Relations Appeal E102 of 2023) [2025] KEELRC 3717 (KLR)

Employment and Labour Relations Court (Appeals Division)
19 December 2025
AJABUODHA NELSON JORUM
577 words in judgment
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The bottom line

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A Kenyan employment appeal failed because the employer attacked the wrong ruling and never appealed the decision that actually mattered.

What this practically means

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Executive summary

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This is a first-instance appeal decided by Abuodha Nelson Jorum, Presiding Judge-Appeals Division, against a ruling of Honourable Irene Ruguru (SPM) delivered on 14th April 2023 in CMEL 2235 of 2019. The ruling had refused the appellant's application (by Motion dated 19th December 2022) to set aside a judgment that had been entered in the respondent's favour, largely ex parte. The appellant advanced six grounds, chiefly that the respondent was unaware of the proceedings, that the process server was not cross-examined to prove proper service, and that the ruling occasioned a miscarriage of justice. The appellant sought that the appeal be allowed with costs and the judgment and the decree of Hon. Becky Cheloti, with all consequential orders, be set aside. The appeal was disposed of by written submissions. The court reviewed the Ruguru ruling and observed that the issues in the Motion of 19th December 2022 were the same as those canvassed before Honourable Makau in his ruling of 11th October 2022, so nothing warranted varying or setting aside that ruling. Critically, before Makau the appellant had sought only leave to file a defence out of time, not setting aside of the judgment; a valid judgment therefore remained in place and had to be set aside first. The court also noted, finding it 'quite strange', that the appellant never appealed Makau's ruling but chose instead to appeal Ruguru's. Concluding that the appellant was bent on delaying the respondent from enjoying the fruits of his judgment, the court dismissed the appeal with costs on 19th December 2025.

Questions the Court framed

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

  1. 1.Whether the learned magistrate erred in failing to find that the respondent was unaware of the suit's proceedings and therefore failed to enter appearance and defend the suit
  2. 2.Whether the process server not being cross-examined by the respondent undermined proof of proper service
  3. 3.Whether the matter having proceeded ex parte, the magistrate erred in refusing to set aside the judgment
  4. 4.Whether the ruling occasioned a failure of justice or miscarriage of justice

Key legal issues

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01

Whether the ruling of Honourable Ruguru (SPM) refusing to set aside the ex parte judgment should be interfered with on appeal

Holding

The appeal fails; the magistrate correctly noted that the issues raised had been canvassed and determined before Honourable Makau, and against that ruling there was no appeal

Reasoning

The court read the ruling of Honourable Ruguru and that of Honourable Makau. Ruguru had declined to vary or set aside Makau's earlier ruling because the Motion of 19th December 2022 raised the same issues already considered on 11th October 2022. Before Makau, the appellant sought only leave to file a defence out of time, not setting aside of the judgment; a valid judgment therefore existed that had to be set aside first. The appellant never appealed Makau's ruling yet appealed Ruguru's, which the court found strange and indicative of a strategy of delaying the respondent from enjoying the fruits of his judgment.

p. 2

Legal principles established

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  • Where leave to file a defence out of time was sought but no application to set aside the judgment was made, a valid judgment remains in place and must first be set aside before leave to respond out of time can be granted
  • A party cannot litigate afresh before a second magistrate issues already determined by a prior ruling of a coordinate court of the same rank

Court orders

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  1. 1.The appeal is found without merit and is dismissed with costs
  2. 2.It is so ordered

The bench

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

AJ
majority

Wrote the judgment

On appeal from
Magistrates' Court (ELRC)
CMEL 2235 of 2019
Jurisdiction invoked
First appellate jurisdiction over rulings of the magistrates' court in employment and labour matters (statutory appeal)

Relief refused

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Setting aside of the judgment in favour of the respondent and of the decree of Hon. Becky Cheloti with all consequential orders

The appeal was found to be without merit; the issues raised had already been canvassed before Honourable Makau and the appellant had not appealed that ruling

p. 2

Costs

The appeal is dismissed with costs to the 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 appeal is therefore found without merit and is hereby dismissed with costs.
p. 2Final orders - dismissal of appeal
There was therefore in place a valid judgment which had to be set aside before the appellant court be granted leave to file a response out of time.
p. 2Necessity of setting aside a valid judgment before leave to respond out of time
the court agrees with the observation by honourable Ruguru that the appellant is bent on delaying or frustrating the respondent from enjoying the fruits of his judgment.
p. 2Abuse of process / delay tactic
nothing was raised in the application to warrant the Court varying or setting aside the ruling aforementioned.
p. 2Res judicata effect of earlier ruling before Honourable Makau

Issues in the judgment

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minor

The judgment inconsistently dates the judgment sought to be set aside: paragraph 2 refers to 'decree of the Hon. Becky Cheloti' while paragraph 5 states the judgment was 'delivered on 11th March, 2022', and paragraph 3 refers to a ruling of Honourable Makau 'delivered on 11th October, 2022' - the dates and judicial officers referenced do not fully reconcile within the text

minor

The case number of the appeal before this court is not stated anywhere 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, "Wright Press Limited v Omolo (Employment and Labour Relations Appeal E102 of 2023) [2025] KEELRC 3717 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3717/eng@2025-12-19

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