https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/147

Ambembo v Zoom Water Supplies Ltd (Employment and Labour Relations Cause E011 of 2024) [2026] KEMC 147 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEMC 147 (KLR) Republic of Kenya In the Mombasa Law Courts Employment and Labour Relations Cause E011 of 2024 EM Mwamuye, SRM June 25, 2026 Between Ronald Otiende Ambembo Claimant and Zoom Water Supplies Limited Respondent Ruling Introduction 1.Before Court is the Notice of Motion dated 15th April 2026 brought by the Respondent/Judgment Debtor. The application principally seeks stay of execution, setting aside of the judgment delivered on 27th June 2025 together with all consequential orders, lifting of warrants of attachment and sale, setting aside of the proclamation of attachment, and leave to file a Statement of Response and Defence out of time. 2.The application is supported by the affidavit of Mohammed Adam, a director of the Applicant company. It is opposed through the Replying Affidavit of the Claimant, Ronald Otiende Ambembo, sworn on 26th April 2026 and the written submissions filed by the parties. Background 3.The Claimant instituted this cause through a Memorandum of Claim dated 18th January 2024 seeking various employment dues arising from what he described as unlawful and unfair termination of employment. He pleaded that he was employed by the Respondent as a driver on 12th April 2014 at a salary of Kshs.25,000/= per month and that his employment was terminated on 30th March 2021. 4.The Memorandum of Claim indicated that service upon the Respondent would be effected through the email address moadam40@yahoo.com. An Affidavit of Service sworn by Titus Mukanzi on 6th March 2024 stated that the Notice of Summons, Memorandum of Claim, Verifying Affidavit, witness statements, list of witnesses, list of documents and Mention Notice dated 7th February 2024 were electronically served on the Respondent on 15th February 2024 at 3.52 p.m. through the email address moadam40@yahoo.com. 5.The Respondent did not enter appearance or file a response. The matter subsequently proceeded undefended and judgment was delivered on 27th June 2025 in favour of the Claimant in the sum of Kshs.607,291.70 together with costs and interest. Costs were thereafter assessed at Kshs.68,750/= and a decree issued on 12th March 2026. 6.Execution commenced. A Warrant of Sale in Execution of Decree was issued on 27th February 2026 and Makini Auctioneers Agencies proclaimed several motor vehicles belonging to the Applicant including motor vehicle registration number KAZ 750K. 7.The Applicant contends that it only became aware of the existence of the suit on 24th March 2026 when the Decree and Certificate of Costs were served through the email address zoomwater484@gmail.com. It is this discovery that prompted the present application. Issues for Determination 8.Having considered the pleadings, affidavits, annexures and submissions, the following issues arise for determination:i.Whether the Applicant was duly served with the originating process.ii.Whether the judgment delivered on 27th June 2025 was regular or irregular.iii.Whether the judgment should be set aside.iv.Whether the warrants of attachment and proclamation should be vacated.v.Who should bear the costs of the application. Whether the Applicant was duly served 9.The entire application turns on the question of service. The Claimant maintains that service was properly effected through the email address moadam40@yahoo.com. The Applicant maintains that the said email address does not belong to it and that its official email address is zoomwater484@gmail.com. 10.The Court has carefully examined the record. The Memorandum of Claim itself directed service upon the Respondent through moadam40@yahoo.com. The Affidavit of Service sworn on 6th March 2024 indicates that service was effected through the same email address. The email printout annexed to the affidavit confirms transmission of the pleadings to moadam40@yahoo.com on 15th February 2024. 11.The Court has also considered the documents annexed by the Claimant in opposition to the application. Notably, the Employment Service Letter dated 12th April 2014 issued by Zoom Water Supplies Limited contains the company's contact details. The letterhead bears the email address moadam40@yahoo.com. 12.Further, the staff identity card issued to the Claimant by Zoom Water Supplies Limited similarly bears the email address moadam40@yahoo.com as part of the company's official contacts. 13.These documents emanated from the Respondent company itself and were not generated by the Claimant. The Court is therefore unable to agree with the Applicant's contention that the email address was wholly foreign, unknown or unrelated to the company. 14.Indeed, the documentary evidence produced by the Claimant demonstrates that the said email address was used by the company in its employment records. 15.The Applicant did not provide any documentary evidence demonstrating when the alleged transition from moadam40@yahoo.com to zoomwater484@gmail.com occurred. 16.Neither was any evidence produced to show that the email address used for service had ceased to exist, was inactive, or did not belong to the company at the time service was effected. 17.The Court further notes that electronic service is recognized under Order 5 Rule 22B of the Civil Procedure Rules and under the Electronic Case Management Practice Directions. 18.I am therefore satisfied that the Claimant established, on a balance of probabilities, that service was effected through an email address associated with the Applicant. Accordingly, I find that service was proper. Whether the Judgment was Regular or Irregular 19.Having found that service was duly effected, it follows that the judgment entered on 27th June 2025 cannot be described as irregular. 20.The distinction between regular and irregular judgments was authoritatively discussed in James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR. 21.An irregular judgment is one entered without service. A regular judgment is one entered after service where a defendant fails to enter appearance or file a defence. The material before Court demonstrates that the Applicant was served but failed to participate in the proceedings. The judgment entered on 27th June 2025 was therefore a regular judgment. Whether the Judgment Should Nevertheless be Set Aside 22.Even where a judgment is regular, the Court retains discretionary power under Order 10 Rule 11 of the Civil Procedure Rules to set it aside upon such terms as are just. 23.The principles governing the exercise of this discretion were set out in Patel v East Africa Cargo Handling Services Ltd [1974] EA 75 and Shah v Mbogo [1967] EA 116. 24.The Court considers: the explanation for default; whether the application was brought without undue delay; whether a plausible defence raising triable issues exists; and whether prejudice will be occasioned to either party. 25.The Applicant moved the Court reasonably promptly after learning of the decree and execution process. However, the Court notes a significant deficiency in the application. 26.Although the Applicant repeatedly asserts that it has a good defence and raises triable issues, no substantive draft defence capable of demonstrating such triable issues has been placed before Court in a manner that enables the Court to evaluate its merits. 27.The Applicant merely makes broad assertions that the claim was settled, is statute barred, and that the computations are disputed. 28.The Court is unable to discern from the material placed before it any bona fide triable issue warranting reopening proceedings that culminated in judgment after the Claimant proved his case. 29.The Court is also alive to the fact that judgment was delivered on 27th June 2025 and execution only commenced after taxation and extraction of the decree. The Claimant has waited a considerable period to enjoy the fruits of his judgment. 30.The Court must balance the right of a litigant to be heard against the equally important principle that litigation must come to an end. 31.In the circumstances of this case, I am not persuaded that sufficient cause has been demonstrated to warrant setting aside the judgment. The prayer to set aside the judgment therefore fails. Whether the Warrants and Proclamation Should be Vacated 32.The warrants of attachment and sale were issued pursuant to a valid decree arising from a regular judgment. Having declined to set aside the judgment, there is no legal basis upon which the warrants and proclamation can be vacated. 33.The allegations against the auctioneer concerning the manner of attachment were not substantiated through independent evidence and cannot, without more, invalidate the execution process. 34.The Court therefore declines to interfere with the warrants of attachment and sale and the proclamation issued pursuant thereto. Costs 35.Costs follow the event. The Claimant has successfully resisted the application. No exceptional circumstances have been demonstrated to warrant departure from the general rule. The Claimant shall therefore have the costs of the application. Orders 36.Accordingly, the Notice of Motion dated 15th April 2026 is hereby dismissed. For avoidance of doubt:i.The Court finds that the Applicant was duly served with the originating through the email address moadam40@yahoo.com.ii.The judgment delivered on 27th June 2025 was a regular judgment.iii.The prayer seeking to set aside the judgment is declined.iv.The prayer seeking leave to file a Statement of Response and Defence out of time is declined.v.The prayer seeking lifting of the Warrants of Attachment and Sale is declined.vi.The prayer seeking setting aside of the Proclamation of Attachment is declined.vii.The interim stay of execution previously granted is hereby discharged.viii.The Claimant/Decree Holder shall be at liberty to proceed with execution in accordance with the law.ix.Costs of the application are awarded to the Claimant/Decree Holder.It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS At MOMBASA THIS 25TH JUNE 2026.……………………………………………….EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE