Dunman v Athi Stores Limited

Applicant avers that it was never served with the pleadings or summons to enter appearance and was consequently unaware of the proceedings until 21st May 2025, when its former employee forwarded a copy of the judgment to its director through WhatsApp. 3. The Applicant asserts that the judgment was therefore irregularly obtained, having been entered on the basis of an adavit of service which falsely indicated that service had been eected. 4. It contends that, having not been served and having had no notice of the proceedings, it was denied an opportunity to participate in the suit or defend its interests. The Applicant therefore maintains that the interlocutory and nal judgments ought to be set aside ex debito justitiae. 5. It is further the Applicant’s case that the present application was led without undue delay, having been brought promptly upon discovery of the judgment and upon instruction of counsel. The Applicant maintains that it has a competent defence raising triable issues and is ready and willing to enter appearance and defend the claim on its merits. 6. The Applicant avers that unless the impugned judgment is set aside and execution stayed pending the hearing and determination of the application, it stands to suer substantial prejudice. It asserts that allowing an ex parte judgment obtained without service to stand would amount to condemning it unheard and would oend the rules of natural justice and the interests of justice. 7. The Applicant consequently urges the Court to exercise its discretion to set aside the interlocutory and nal judgments and all consequential orders, stay execution, grant it leave to defend the suit, and allow its advocates to come on record. Claimant/Respondent’s Case 8. In opposition to the application, the Claimant/Respondent led a replying adavit dated 15th April 2026, sworn by the Claimant herein. 9. The Respondent contends that the Applicant became aware of the judgment on 21st May 2025 but waited for nearly 10 months, until March 2026, before approaching the Court. It asserts that the delay is unreasonable and inexcusable and is intended to frustrate the fruits of the judgment. 10. The Respondent denies the Applicant’s allegation that it was not served with the Summons and Memorandum of Claim. It states that the Applicant was duly served and relies on the Adavit of Service by the Process Server he has produced in Court. 11. It further asserts that the Applicant was served with various notices throughout the proceedings, as demonstrated by the bundle of Adavits of Service produced in Court. 12. The Respondent contends that the Applicant’s claim that it only learnt of the suit through WhatsApp is merely a litigation tactic intended to avoid the consequences of its failure to enter appearance and participate in the proceedings. 13. With regard to the draft Response to the Memorandum of Claim, the Respondent asserts that the same is a sham and contains mere general denials which do not raise any triable issues. It further contends that the issues raised therein are irrelevant to the present employment dispute. 14. The Respondent states that it has expended considerable time and resources in obtaining the judgment and would suer irreparable prejudice if the same were set aside without security. It therefore urges that, should the Court be inclined to set aside the judgment, such order ought to be conditional upon the Applicant depositing the full decretal sum in a joint interest-bearing account as security. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2601/eng@2026-09-25 2

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15. The Respondent further led grounds of opposition dated 10th April 2026 opposing the application on the following grounds of law: 1. That the Application is fatally defective, an afterthought, and an abuse of the court process. 2. That the Respondent/Applicant has failed to satisfy the mandatory requirements for setting aside a default judgement under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016 read together with Order 10 Rule 11 of the Civil Procedure Rules, specically the requirement to demonstrate sucient cause for the delay. 3. That the Application oends the doctrine of laches as there has been unreasonable delay on the part of the Respondent/Applicant for a period of nearly ten (10) months. 4. That the Application as drawn and led is inept and does not meet the threshold for the exercise of this Honourable Court's discretion. 5. That the Application is a tactical maneuver to deny the Claimant/Respondent the fruits of his judgement and should be dismissed with costs. Respondent/Applicant Submissions 16. On stay of execution, the Applicant anchored its submissions on Order 10 Rule 11 and Order 22 Rules 22 and 25 of the Civil Procedure Rules, 2010, citing Order 22 Rule 25(a), which it quoted as empowering the court, where a suit is pending against the holder of a decree, to stay execution of the decree until the pending suit has been decided. 17. It was submitted that the grant of stay is discretionary and that the Applicant had demonstrated substantial and sucient reasons for its exercise, chiey that want of service resulted in an irregular judgment liable to be set aside ex debitio justitiae. Further, the application had been brought promptly upon the Applicant learning of the judgment. 18. In support thereof, the Applicant cited John Gachanja Mundia v Francis Muriira Alias Francis Muthika & another [2016] eKLR, where the High Court, invoking the overriding objective, held that courts "should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief,". Additionally, in Victory Construction v BM (a minor suing through next friend one PMM) [2019] eKLR, in which Odunga J, discussing sections 1A and 1B of the Civil Procedure Act, emphasized that the court must weigh the twin principles of proportionality and equality of arms and opt for the lower rather than the higher risk of injustice. 19. On setting aside the ex parte judgment, it was submitted that the right to a fair hearing is constitutionally protected under Article 50 of the Constitution and is a cornerstone of the rule of law. 20. In support of this position, the Applicant cited Cecilia Wanja Waweru v Jackson Wainaina Muiruri & another [2014] eKLR, as citing Richard Nchapi Leiyagu v Independent Electoral & Boundaries Commission & 2 others [2014] eKLR, wherein the Court held: “The right to a hearing has always been a well protected right in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.” 21. It is the Applicant’s submission that it is upon the discretion of the court whether to set aside judgment or orders granted exparte. The court is also enjoined to consider whether sucient cause has been demonstrated by the applicant. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2601/eng@2026-09-25 3

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22. Further relying on Order 10 Rule 11 of the Civil Procedure Rules and the decisions in Wachira Karani v Bildad Wachira [2016] eKLR and CMC Holdings Ltd v James Mumo Nzioki [2004] eKLR for the proposition that discretion to set aside ex parte judgments exists to prevent injustice arising from excusable mistake, inadvertence or error. 23. It is the Applicant’s submission that the Respondent’s failure by it with summons to enter appearance constitutes the special circumstance in whose favour the discretion of this court should be exercised. 24. The Applicant further argued that the Claimant would suer no prejudice incapable of compensation by costs if the judgment were set aside, whereas the Applicant would suer substantial injustice by being denied an opportunity to be heard and subjected to execution of a judgment entered in its absence. In this regard, reliance was placed on Sebel District Administration v Gasyali & Others [1968] eKLR, particularly the principle that to deny the subject a hearing should be the last resort of a court and that a party should, where appropriate, be allowed to defend upon payment of costs occasioned by the delay. 25. As to the defence on the merits, the Applicant submitted that the draft defence raises triable issues warranting a hearing on the merits. Relying on Patel v E.A. Cargo Handling Services Ltd [1974] EA, as cited in James Wanyoike & 2 others v C M C Motors Group Limited & 4 others [2015] eKLR, wherein it was held that a court will not set aside a regular judgment unless satised that there exists a defence raising a triable issue disclosing a prima facie defence t for adjudication at trial. 26. It was submitted that the draft defence annexed to the supporting adavit discloses several such triable issues, including whether the Claimant's termination was lawful by reason of attainment of the mandatory retirement age, a fact said to be within the Claimant's knowledge and recognized in law as an accepted labour practice not amounting to discrimination, and whether the Claimant had in fact been paid his terminal salary dues prior to retirement. Claimant/Respondent’s Submissions 27. The Respondent submitted that the central issue for determination is whether the Respondent/ Applicant has demonstrated sucient cause to warrant setting aside the judgment delivered on 19th December 2024. 28. It was submitted that under Rules 31 and 34 of the ELRC (Procedure) Rules, 2024, read together with Order 10 Rule 11 of the Civil Procedure Rules, an applicant seeking to set aside an ex parte judgment is required to demonstrate sucient cause for its non-appearance and any delay in approaching the Court. 29. The Respondent argued that the Applicant admits having become aware of the judgment on 21st May 2025 but only moved the Court in March 2026, nearly ten months later, without oering any credible explanation for the delay. He relied on Shah v Mbogo & Another [1967] EA 116, wherein it was held the discretion to set aside an ex parte judgment is intended to prevent injustice arising from accident, inadvertence or excusable mistake, and not to assist a party who deliberately seeks to obstruct or delay the course of justice. The same principle was said to have been armed in Price & Another v Hilder [1986] KLR 95 and Njagi Kanyunguti & 4 Others v David Njeru Njogu, CA No. 181 of 1994. 30. The Respondent further submitted that the judgment in the present case was a regular judgment, having been entered after proper service of the summons, pleadings and subsequent notices. It relied on the Adavits of Service marked “CD-1” to “CD-10”, including service of the judgment notice, and submitted that the matter proceeded to hearing in the Applicant’s absence despite such service. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2601/eng@2026-09-25 4

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31. The Respondent distinguished the circumstances from those applicable to an irregular judgment under James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR, contending that the Applicant was therefore required to demonstrate sucient cause before the Court could exercise its discretion in its favour. 32. On the proposed defence, the Respondent submitted that the draft defence consists largely of bare denials and raises no genuine triable issues. It therefore argued that, even apart from the issue of delay and service, the Applicant had failed to demonstrate a bona de defence warranting the setting aside of a regular judgment. 33. The Respondent invoked the equitable principle that equity aids the vigilant and not the indolent, arguing that the Applicant’s nearly ten-month delay amounted to inordinate delay and oended the doctrine of laches. 34. He submitted that the delay prejudiced him, as he had already expended considerable time and resources in securing the judgment. While acknowledging the Court’s inherent jurisdiction to set aside or vary an ex parte judgment on such terms as are just, the Respondent maintained that the Applicant had failed to demonstrate any reasonable or excusable explanation for its absence and delay. 35. The Respondent further submitted that the Court should, in the exercise of its discretion, guard against prejudice to the successful litigant. Relying on Kenya Commercial Bank Ltd v Nyataige & another [1990] KEHC 50 (KLR), it argued that judicial discretion ought to be exercised to prevent injustice. 36. It contended that, if the Court were nevertheless inclined to set aside the judgment, the interests of justice would require the Applicant to deposit the entire decretal sum in a joint interest-bearing account as security, particularly in view of the alleged nancial diculties facing the Applicant. 37. The Respondent therefore urged the Court to dismiss the application with costs for want of sucient, reasonable or excusable cause. In the alternative, any order setting aside the judgment and granting stay of execution ought to be conditional upon deposit of the full decretal sum in a joint interest-bearing account as security. 38. I have examined all the averments and submissions of the parties herein. The applicant seeks stay on the ground that they were never served with pleadings in this case and so were condemned unheard. 39. The respondent claimant opposed the application averring that they served the respondent applicant all along. They exhibited various adavits of service all along until the hearing time. The averment that there was no service is found without proof. 40. That notwithstanding, 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. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 25TH DAY OF SEPTEMBER 2026. HELLEN WASILWA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2601/eng@2026-09-25 5

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