https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1866

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E665 OF 2022** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **THE CONSTRUCTION HOUSE COMPANY LTD…...........APPLICANT** **VS** **BRIAN OUMA OCHOLLA.....................................1ST RESPONDENT** **JEFF NYAMORI OCHIENG..................................2ND RESPONDENT** **GERALD KIOKO.................................................3RD RESPONDENT** **NELSON MANDELA OKUMU...............................4TH RESPONDENT** **MESHACK DULANI…..........................................5TH RESPONDENT** **RULING** 1. The Claimant/Applicant filed a Notice of Motion dated 16th March 2026 seeking ORDERS: - 2. *Spent* 3. *THAT this Honourable Court be pleased to stay any further proceedings and/ or execution of the judgment and/or decree issued on the 4th day of June 2025 pending the hearing and determination of this application inter partes.* 4. *THAT this Honourable Court be pleased to set aside the ex parte judgment and/ or decree entered against the Applicant on the 4th day of June 2025 and all consequential orders and/ or decrees arising therefrom.* 5. *THAT upon setting aside the said ex parte judgment, this Honourable Court be pleased to grant the Applicant leave to file its defence and to defend the Respondents' suit on merit.* 6. *THAT costs of this application be provided for.* **Applicant’s Case** 1. The Applicant states that vide a ruling of this Court delivered on 24th February 2026, the firm of Abantu & Kariuki Advocates was granted leave to come on record post judgment, thereby properly instituting the present application. 2. It is the Applicant's case that it was not accorded a fair hearing prior to the entry of the ex parte judgment on 4th June 2025, contrary to Article 50 of the Constitution, which guarantees every person the right to a fair hearing. 3. The Applicant avers that the non-attendance of its former advocate on the hearing date was inadvertent and not deliberate, being occasioned by circumstances beyond its control and solely attributable to the mistake and/or omission of its previous legal representative. 4. It contends that it only became aware of the entry of judgment after the same had been delivered and that it moved the Court promptly and without undue delay upon discovery thereof. 5. The Applicant asserts that it is an established principle of law that courts have in numerous decisions declined to visit the mistake of advocates upon their clients where it is sufficiently demonstrated that non-compliance with procedural requirements was attributable to the advocate's fault. 6. It further avers that the issues raised in the present application were never previously adjudicated on their merits, the prior application having been struck out purely on the technical ground that counsel was not properly on record, and that the substantive grounds for setting aside the ex parte judgment have never been heard or determined. Therefore, the doctrine of *res judicata* does not arise. 7. The Applicant contends that its non-attendance was not deliberate, indolent, or intended to frustrate or delay the proceedings, and at all material times it was ready and willing to prosecute its defence. 8. It was further stated that the Applicant was not accorded any direct communication or warning that its advocate failed to attend to the matter; it relied entirely and reasonably on its former advocate, and that was never informed of any alleged indolence or need for follow-up, such that there was no negligence on its part. 9. On the arbitration process referenced in the pleadings, the Applicant states that the same did not proceed due to procedural challenges and miscommunication attributable to counsel and not to it, and that it did not refuse to attend any session or otherwise obstruct the arbitration process. 10. The Applicant further avers that the Respondents failed to disclose and/or deliberately suppressed material facts which would have altered the Court's appreciation of the case had they been disclosed during the ex parte hearing. It asserts that it has a good and arguable defence to the Respondents' claim, raising triable issues that warrant full ventilation and judicial determination on merit. 11. It is the Applicant's case that the present application is neither vexatious, unreasonable, nor an abuse of the court process, but seeks to uphold Article 50 of the Constitution by ensuring that disputes are heard on merit rather than determined on technical lapses. 12. The Applicant contends that unless the Court intervenes and sets aside the ex parte judgment, it stands to suffer grave injustice and irreparable harm, including the imminent risk of execution proceedings and loss of reputation. 13. It asserts that no prejudice will be occasioned to the Respondents that cannot be adequately compensated by an award of costs, and urges that it is just and equitable that the orders sought be granted. **Respondents’ Case** 1. In opposition to the application, the Respondents filed a replying affidavit dated 14th April 2026, sworn by the 3rd Respondent. 2. The Respondents oppose the application, averring that the Applicant is bombarding the Court with a series of applications in order to defeat the ends of justice, this being the third post-judgment application filed by the Applicant. They state that vide a ruling delivered on 24th February 2026, the Court allowed the firm of Abantu & Kariuki Advocates to come on record post judgment, with the rest of the prayers in the earlier application being struck out as counsel was not properly on record at the time. 3. The Respondents contest the Applicant's averment that its non-attendance was due to its previous advocate's mistake. They aver that the Applicant had a duty to be vigilant and follow up on the status of its case but chose indolence instead, thus, the non-attendance was deliberate with the intention to delay and frustrate the proceedings despite the Applicant having been granted numerous chances to defend itself. They contend that it is trite law that equity aids the vigilant and not the indolent. 4. On the arbitration process, the Respondents aver that despite the Applicant having moved the Court for the matter to be referred to arbitration, it frustrated the entire process by failing to attend the arbitration sessions, forcing the Court to refer the matter back and direct all parties to comply with pre-trial directions for hearing. 5. They further aver that despite the Applicant having been duly served with mention and hearing notices, it failed to attend court as scheduled. 6. The Respondents oppose the Applicant's averment that they wilfully concealed and/or suppressed material facts, asserting that they availed sufficient evidence to warrant the award and that the Applicant was afforded numerous chances to defend itself but chose to further frustrate them. 7. They contend that the Applicant's conduct since the institution of the suit demonstrates that it has been bent on frustrating the entire court process, taking the Court's time and process for granted time and again. 8. The Respondents further aver that the Applicant has not settled the previous costs arising from the prior applications, and that whoever comes to equity must come with clean hands. 9. They aver that the present application is calculated to bar them from enjoying the fruits of their judgment and is couched with the intention to halt the wheels of justice, it being trite law that litigation must come to an end. 10. The Respondents assert that the Applicant has failed to satisfy the mandatory requirements under Order 42 Rule 6(2) of the Civil Procedure Rules for the grant of a stay, particularly given the outstanding costs yet to be settled. 11. They further aver that setting aside the ex parte judgment would be detrimental to them as the prolonged duration of this case places them in an increasingly precarious situation. They urge that the application is vexatious, unreasonable, and a waste of the Court's precious time, and pray that it be dismissed with costs. **Applicant’s Submissions** 1. The Applicant submitted on six issues: whether the Applicant’s new advocates are properly on record; whether the delay in filing the application has been sufficiently explained; whether the mistake of advocate should be visited upon the Applicant; whether the Applicant has demonstrated the existence of a good and arguable defence with triable issues; whether the balance of convenience and the interests of justice favour granting the orders sought, including a stay of execution; and whether the current Application is res judicata. 2. On whether its new advocates are properly on record, the Applicant submitted that this was expressly and conclusively resolved by the Court's Ruling of 24th February 2026, which granted Abantu & Kariuki Advocates leave to come on record post-judgment pursuant to Order 9 Rule 9 of the Civil Procedure Rules, 2010. It was submitted that the said ruling stands unchallenged and unimpeached, therefore, its current advocates are therefore properly on record. 3. On the second issue, the Applicant submitted that a litigant who acts in good faith and retains legal counsel should not be made to suffer the consequences of that counsel's inadvertence or negligence, this being a principle deeply rooted in jurisprudence and natural justice. 4. It was submitted that the non-attendance was occasioned solely by an inadvertent mistake on the part of the previous advocate, of which the Applicant only became aware after judgment had been entered, and this is not a case of an indolent or indifferent litigant but of a party whose trust in its legal representative was regrettably betrayed by a procedural lapse. The Applicant relied on [***Belinda Murai & 9 others v Amos Wainaina [1979] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1979/25/eng%401979-03-08), where Madan J.A. stated: *"A mistake is a mistake. It is no less a mistake because it is an unfortunate slip... The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to have known better. The court may not forgive or condone it but it ought to certainly do whatever is necessary to rectify it if the interests of justice so dictate."* The Applicant further relied on ***Philip Chemowolo & Another v Augustine Kubede (1982) KAR 1036***. 5. Relying on ***Shah v Mbogo & Another [1967] E.A.***, where the court held that the discretion to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error; the Applicant submitted that it falls squarely within the category of an innocent party deserving of the Court's protection, that there is no allegation or evidence of fraud, bad faith, or any intention to overreach, and that upon discovering the default it moved with commendable alacrity. 6. It further submitted that this Court is constitutionally enjoined under Article 159(2)(d) of the Constitution to administer substantive justice without undue regard to technicalities, and that to shut out the Applicant on account of its advocate's procedural lapse would elevate form over substance and defeat the very objective of constitutional adjudication. It was argued that the right to be heard under Article 50 of the Constitution is not merely a procedural luxury but a cornerstone of the rule of law. 7. On delay, the Applicant submitted that the governing principles on delay were articulated in [***Utalii Transport Company Limited & 3 others v Nic Bank Limited & another [2014]eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/7255/eng%402014-01-21), where the Court restated the acceptable five-limb test: “But before I close, I will re-state; the acceptable test is that; “….*Invariably, what should matter to the court, is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the plaintiff amounts to an abuse of the court; 3) whether the delay is inordinate and inexcusable; 4) whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and 5) what prejudice will the dismissal cause to the plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.”* 8. It was submitted that judgment was delivered on 4th June 2025 and the application filed on 16th March 2026, therefore, the delay represents the aggregate of time reasonably required to discover that the matter had proceeded *ex parte*, to disengage from former counsel and engage new advocates, to review the court file and proceedings, and to prepare the application together with the draft defence and submissions. 9. Applying the five-limb test, the Applicant submitted that on limb 0ne, there is no evidence of willful obstruction or deliberate non-attendance, the default having arisen solely from the previous advocate's omission; on limb two, the Applicant has come before the Court properly and transparently with no multiplicity of proceedings, vexatious conduct, or ulterior purpose; on limb three, the delay is neither inordinate nor inexcusable when viewed in proper context and is clearly excusable within the meaning contemplated in ***Utalii***; on limb four, no risk to a fair trial or irreparable prejudice to the Respondents arises, witnesses being available and documentary evidence intact, any inconvenience being compensable by costs; and on limb five, dismissal would occasion grave and irreversible consequences, permanently shutting out the Applicant, condemning it to suffer execution on a judgment obtained in its absence, and rendering its right to a fair hearing under Article 50(1) of the Constitution illusory. It was submitted that this is precisely the kind of injustice the Court warned against in [***Utalii (Supra)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/7255/eng%402014-01-21), where rigidly punishing delay would place justice too far away from a party. 10. On the fourth issue, the Applicant submitted that the threshold for demonstrating a defence on the merits is not a high one and does not require proof that the defence will ultimately succeed, the Applicant needing only to show that the defence raises issues worthy of judicial determination. Reliance was placed on [***Stephen Wanyee Roki v K-Rep Bank Limited & 2 others [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/643/eng%402018-05-04), affirming ***Patel v East African Cargo Handling Services Limited [1974] EA 75***, where the Court stated:*" The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules the principle obviously is that unless and until the count has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.”* 11. The Applicant submitted that its proposed defence raises several triable issues: first, it categorically denies the existence of an employer-employee relationship with the 3rd and 5th Respondents, asserting instead that they were engaged on a contract for service, a fundamental question since protections under the Employment Act only arise where a contract of service is established; second, it denies having engaged in any unfair labour practices and invokes the evidentiary burden under Section 47(5) of the Employment Act, which rests upon the employee to demonstrate such practices; and third, in the alternative, it pleads that even if an employment contract were presumed, the Respondents have failed to provide proof of salaried payments or statutory deductions such as NSSF, NHIF, or PAYE, which are key indicia of an employer-employee relationship. 12. It was submitted that these issues can only be determined upon a full hearing on the merits and that to shut out the Applicant at this stage would deprive the Court of the full factual and legal picture, a result countenanced by neither natural justice nor the Constitution. 13. On the fifth issue, the Applicant submitted that the balance of convenience tilts decisively in its favour, as, if the orders are granted, the Respondents will suffer no prejudice that cannot be adequately compensated by costs. It argued that their claim remains alive with the only consequence being that they will be required to prove their case against a defended record and it cited [***Utalii Transport Company Limited (Supra)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/7255/eng%402014-01-21) in support. 14. Conversely, it submitted that if the judgment is not set aside and a stay not granted, the Applicant will be condemned unheard in breach of the rule of natural justice, *audi alteram partem*; it will face immediate and irreparable harm through execution with assets potentially attached and business operations crippled; and it will be denied its constitutional right to a fair hearing under Article 50(1) of the Constitution. 15. It was submitted that what the Applicant stands to lose is the entirety of its right to be heard, a loss no award of costs can ever remedy, whereas any delay in the Respondents' realization of the fruits of the ex parte judgment is adequately compensable by costs which the Applicant is prepared to bear. 16. On the final issue, the Applicant submitted that the Respondents' contention that the application is *res judicata* on the basis of the prior application dated 12th November 2025 is misguided both in fact and in law. For the doctrine of *res judicata* under Section 7 of the Civil Procedure Act to apply, all cumulative elements must be satisfied, including that the issue must have been heard and finally determined on its merits by a competent court. 17. While conceding that the parties and court are the same, the Applicant submitted that the crucial element of final determination on the merits was never satisfied, the previous application having been dismissed solely on the technical ground that counsel was not properly on record under Order 9 Rule 9 of the Civil Procedure Rules, with the Court expressly declining to consider any substantive issue. 18. The Applicant relied on [***Jituka Investments Limited v Lathia & 2 others [2025] KEHC 11588 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11588/eng%402025-07-31), where the High Court held that an application does not constitute *res judicata* where the substantive issues of setting aside a default judgment and prayers for stay were never fully examined, concluding that such an application was neither *res judicata* nor an abuse of process solely because it had yet to be heard and determined on the merits. The Applicant further relied on [***John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [2021] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/39/eng%402021-08-06), where the Supreme Court emphasised that *res judicata* requires a conclusive determination on the merits and cannot be invoked without it. 19. It is the Applicant’s submission that the plea of *res judicata* is unsustainable and must be rejected, and that to hold otherwise would elevate procedural technicality over substantive justice in a manner repugnant to Article 159(2)(d) of the Constitution. **Respondents’ Submissions** 1. The Respondents submitted on three issues: whether the proceedings and/or execution of the ex-parte judgement entered on 4th June, 2025 and decree therefrom should be stayed; whether the ex-parte Judgement entered on 4th June, 2025 and decree therefrom against the Applicant should be Set aside as prayed; whether the Applicant should be granted leave to file their defence and defend this suit on merit. 2. On the first issue, the Respondents submitted despite the Applicant having successfully moved the Court on 9th February 2024 to stay proceedings and refer the matter to arbitration, it frustrated the entire process by failing to cooperate in the appointment of an arbitrator. Consequently, the matter was referred back to Court and all parties directed to comply with pre-trial directions. However, despite being duly served with mention notices, the Applicant failed to attend Court as scheduled. 3. The Respondents disputed the Applicant's attempt to attribute its non-attendance to its previous advocates, arguing that the same was deliberate and calculated, and that equity only aids the vigilant. 4. It was submitted that ex-parte judgement was entered on 4th June 2025, and the Applicant's director was personally notified vide a letter dated 10th June 2025 to the Applicant's official email addresses, yet the Applicant made no effort to settle the judgement. The Respondents noted that their Bill of Costs dated 23rd June 2025 was pending taxation on 10th June 2026. 5. On the applicable threshold, the Respondents invoked Order 42(6)(2) of the Civil Procedure Rules 2010, which requires the Court to be satisfied that substantial loss may result, that the application was made without unreasonable delay, and that security has been furnished. It was submitted that the Applicant filed the application with unreasonable delay, adduced no evidence of loss, and made no commitment to furnish security, thereby failing to meet the statutory threshold. 6. They relied on [***Njoroge & another v Malweyi & another [2024] KEHC 16207 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16207/eng%402024-12-19), where the Court held that: *“It is trite law that execution is a lawful process and it is not a ground for granting stay of execution. The applicants are required to show how execution shall irreparably affect them or will alter the status quo to its detriment therefore rendering the appeal nugatory. In the instant case, the applicant has not shown how they stand to suffer substantial loss. The applicants only mentioned that should the respondents proceed with the execution, the instant proceedings and the appeal shall be rendered nugatory and an exercise in futility. Thus, it is my considered view that the applicants have not demonstrated the substantial loss.”* 7. Further reliance was placed on ***Butt v Rent Restriction Tribunal (1982) KLR 417***, cited in [***Amoke Otieno Pascal v Melvin Anyango Owuor [2022] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/687/eng%402022-04-28), for the proposition that failure to furnish security as ordered will cause an order for stay of execution to lapse. In the event the Court is inclined to grant a stay, the Respondents urged that the Applicant be ordered to furnish security of Kshs. 207,455 as throw away costs. 8. On the second issue, the Respondents submitted that the Applicant was granted numerous opportunities to be heard, its previous advocates having been properly served with court proceedings and dates, yet the Applicant deliberately chose to frustrate the court process notwithstanding that the proceedings had been stayed to accommodate arbitration. 9. In support thereof, the Respondents cited [***Mureithi Charles & another v Jacob Atina Nyagesuka [2022] KEHC 1805 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/1805/eng%402022-03-04), where the Court held that: *“In considering whether or not to set aside a judgement, a judge has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement...a regular judgement would not usually be set aside unless the court is satisfied that there is a defence on the merits, namely a prima facie defence which should go to trial or adjudication.”* 10. They submitted that the judgement was a regular judgement obtained following due process, including proper service as evidenced by several affidavits of service on record. The Respondents argued that setting aside the judgement would be detrimental to them, as they had suffered untold pain and anguish arising from the unlawful termination of their employment, and delaying their right to justice would perpetuate that injustice. They further invoked Article 50(1) of the Constitution which protects the right to a fair trial. 11. It is the Respondents’ submissions that the Applicant has not been keen on prosecuting this suit and will further deny the Respondents their right to enjoy the fruit of their judgement. There is no commitment from the Applicant in terms of security or filing a draft defence that proves that their defense raises triable issues 12. Citing the Ugandan case, [***Philip Ongom, Capt v Catherine Nyero Owota***](https://media.ulii.org/media/judgment/106661/source_file/philip-ongom-capt-v-catherine-nyero-owota-2003-ugsc-16-20-march-200.pdf)***- Civil Appeal No. 14 of 2001 [2003] UGSC 16 (20 March 2003)***, the Respondents submitted that the Court's discretion to set aside an ex-parte judgement is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, not to assist a party who has deliberately sought to obstruct or delay the cause of justice. 13. On the final issue, the Respondents submitted that having entered appearance and successfully obtained a stay for purposes of arbitration, the Applicant thereafter frustrated the arbitration process by refusing to cooperate in the appointment of an arbitrator, demonstrates that the Applicant’s principal aim is to bar the Respondents from accessing justice. 14. It was submitted that since the application did not meet the threshold for setting aside the judgement of 4th June 2025, there is no basis upon which leave to file a defence ought to be granted. The Respondents invoked Order 36 Rule 7 of the Civil Procedure Rules, which provides that leave to defend may be given unconditionally or subject to such terms as the Court thinks fit, but argued that the Applicant's draft defence raises no triable issues, containing nothing beyond mere denials. 15. They submitted that the inconvenience to be suffered by them should the judgement be set aside cannot be adequately remedied by an award of costs. The Respondents further argued that granting the Applicant leave will prejudice them as they have zealously prosecuted the suit and obtained judgement in their favour. 16. The Respondents denied concealing or suppressing any material facts as alleged, submitting that the Applicant has been granted numerous opportunities to participate in the proceedings but has failed, refused, and neglected to do so. 17. I have examined all the submissions and averments of the parties herein. The applicant seeks prayers before this court to set aside the judgment entered against them on 4/6/2025 in favour of the claimant respondents. The applicants have averred that the mistake on record shows laxity on the part of the previous counsel on record which this court indeed noted and directed that the hearing proceeds accordingly. 18. The current counsel came on record after the said judgment on 24/2/26 and then filed this application on 16th March 2026 which I would consider within reasonable time. 19. Given the time expended by the claimant respondents in presenting this case and the obvious mistake of the respondent applicants previous counsel who were laxed in defending the suit, I would allow the application in part for ends of justice and allow the application to set aside the ex-parte judgment entered on 4/6/2025 on condition that the applicants proceeds to file their defence and pay thrown away costs of kshs 50,000/- within 14 days in default the judgment of 4/6/2025 stands upheld and in force. Costs of this application to be in the cause. **Dated, Signed and Delivered Virtually at Nairobi this 30th Day of June, 2026.** **HELLEN WASILWA** **JUDGE**