Background
1 By a Notice of Motion Application dated 5th March 2025, the 2nd Respondent/ Applicant seeks the following orders:
I. THAT the application be certified urgent, be heard, and orders issue ex parte in the first instance.
II. THAT this Honourable Court be pleased to issue a stay of execution of the Judgment entered on the 27th Day of February 2025 against the 2nd Respondent pending the hearing and determination of this application.
III. THAT this Honourable Court be pleased to set aside the Judgment entered herein on the 27th day of February 2025.
IV. THAT this Honourable Court reviews the Judgment entered herein on the 27th day of February 2025, Hon. LUCY KHAHENDI SINDANI in favour of the Claimant.
V. THAT this Honourable Court do grant leave to the 2nd Respondent and an opportunity to defend the suit herein, as it has a good defence raising triable issues.
VI. THAT the costs of this application be provided for.
2 The application is based on the grounds outlined on its face, supported by an affidavit sworn by Nicholas Ngoli Inyangala, and a further affidavit by Jorgensen Rene Dalgaard.
3 The Respondent [Zaphania Nyachoti Orembe] resisted the application on the grounds set out in his replying affidavit sworn on 19th March 2025.
The Application
4 The 2nd Respondent/ Applicant stated that evidence has emerged showing that the Applicant /Respondent was not its employee.
5 It was contended that the 2nd Respondent was neither a party in the proceedings that were pursuant to the stipulations of the Work Injury Benefits Act nor those that led to the adoption of the award by the court.
6 There was no service of summons or any court process that was served on him in respect of the proceedings before the Director of Occupational Health and Safety or those before the court, respectively.
7 The 2nd Respondent/Applicant only came to learn of the judgment when they were served with a notice of entry of judgment. They were unrepresented at the hearing of the Applicant’s /Respondent’s case. As such, they were condemned unheard.
8 The draft statement of Response to the statement of claim raises triable issues. They should be allowed to defend the claim.
9 The 2nd Respondent stands to suffer great prejudice if the judgment entered on the 27th February 2025 is not set aside and a decree flowing therefrom is not stayed. The 2nd Respondent shall have been condemned unheard, contrary to the tenets of natural justice.
The Response
10 The Applicant/ Respondent asserted that the 2nd Respondent’s application is frivolous, vexatious, bad in law, incoherent and an abuse of the court process.
11 He contended that he was an employee of the 1st Respondent at all material times. On 26th September 2023, while in the course of his employment, he was involved in a road traffic accident which resulted in an amputation of his right arm.
12 The accident was reported to the said Respondent, who later reported the accident to the County Occupational Safety and Health officer in Kilifi. The form ML/DOSH/ FORM 1 bears the 1st Respondent’s details as his employer. Furthermore, the 1st Respondent indicated on the form that he was his sole employer, hence making it impossible for the 2nd Respondent to participate in any proceedings regarding the accident.
13 It is further asserted that on 4th November 2024, the County Occupational Safety and Health Office, Kilifi, assessed damages for the injury suffered by the Applicant, at KSHS. 2, 432, 769 and issued a notification to the 1st Respondent. The 1st Respondent didn’t appeal against the award.
14 The 1st Respondent, Kenya Tropical Sea Life Limited and Kenya Tropical Sea Life [EPZ] Limited are all sister companies. However, he was an employee of the 1st Respondent, though sometimes, he would be assigned duties for the sister companies.
15 The 1st Respondent refused and or neglected to settle the Director’s award, prompting him to file the matter herein. Service of court process in respect of the matter herein was effected on the Director of the three companies, Rene Dalgaad Jorgensen, by WhatsApp mobile numbers xxx-xxx-184, xxx-xxx-445, and xxx-xxx-345.
16 Subsequently, the Court order herein was served on the said Director via email.
17 The Applicant asserts that he has enjoined the 2nd Respondent in this matter because he was from time to time assigned duties to perform for them, yet they were not his employer.
Analysis and Determination
[i] Procedural History
18 For clarity of record, it is imperative to briefly set out the procedural history of this matter. Through an application dated 6th February 2025, Zaphaina Nyachoti Orembe vs Jorgensen Logistics Ltd, the Applicant sought the following orders;
I. That the court adopts the assessment of the director of occupational health and safety as an order of the court.
II. That a decree be issued in accordance with the assessment of the Director for the sum of KShs. 2, 432,769.
III. That the honourable court be pleased to award interest on the amount from the date of assessment at the rate of 14% per annum.
IV. That the costs of the application be paid by the Respondent.
19 On the 17th February 2025, the application was placed before me for orders ex parte. This Court directed that the application be served for an inter partes hearing on 27th February 2025.
20 On 27th February 2025, neither the Respondent nor their counsel was present in court to oppose the application. Considering the fact that the Court was satisfied that the application had been served on the Respondent and that they hadn’t opposed it by filing an affidavit of service or grounds of opposition, coupled with the fact that they were not present in Court, this Court allowed the application. It adopted the Director’s award as a judgment of the court.
[ii] Determination
21 At no point between the initiation of the instant matter through the application hereinabove mentioned, and the issuance of the order, was the 2nd Respondent/ Applicant made a party to the proceedings herein. Certainly, the order issued was not in any manner expressly or by implication against him.
22 The proceedings had nothing to do with the 2nd Respondent at all. The order of 27th February 2025, too. I find great difficulty in finding relevance and reasonableness in the 2nd Respondent’s / Applicant’s assertion that it was not served with any court process, and thus condemned unheard contrary to the tenets of natural justice.
23 It is imperative to point out that this Court hasn’t lost sight, that, from the material placed before it, the 2nd Respondent wasn’t a party to the Work Injury proceedings before the Director, as it wasn’t named as the employer of the Applicant, and indeed it wasn’t.
24 It will be remiss of this Court, if I do not point out that the 2nd Respondent’s application herein is couched confusedly, with the facts set out in its support so set in a manner that makes no sense at all, and the prayers sought, in a manner which presents immense difficulty as to whose order it desired to have set aside. This Court’s or the Deputy Registrar’s?
25 In light of the foregoing, it isn’t difficult for this Court to reach the inescapable conclusion that the 2nd Respondent’s application is destitute of merit, and is an abuse of the Court process. It is hereby dismissed with costs, which this Court assesses at KShs. 40,000.
Read, signed and delivered virtually in Mombasa this 24th July, 2025.
1 By a Notice of Motion Application dated 5th March 2025, the 2nd Respondent/ Applicant seeks the following orders:
I. THAT the application be certified urgent, be heard, and orders issue ex parte in the first instance.
II. THAT this Honourable Court be pleased to issue a stay of execution of the Judgment entered on the 27th Day of February 2025 against the 2nd Respondent pending the hearing and determination of this application.
III. THAT this Honourable Court be pleased to set aside the Judgment entered herein on the 27th day of February 2025.
IV. THAT this Honourable Court reviews the Judgment entered herein on the 27th day of February 2025, Hon. LUCY KHAHENDI SINDANI in favour of the Claimant.
V. THAT this Honourable Court do grant leave to the 2nd Respondent and an opportunity to defend the suit herein, as it has a good defence raising triable issues.
VI. THAT the costs of this application be provided for.
2 The application is based on the grounds outlined on its face, supported by an affidavit sworn by Nicholas Ngoli Inyangala, and a further affidavit by Jorgensen Rene Dalgaard.
3 The Respondent [Zaphania Nyachoti Orembe] resisted the application on the grounds set out in his replying affidavit sworn on 19th March 2025.
The Application
4 The 2nd Respondent/ Applicant stated that evidence has emerged showing that the Applicant /Respondent was not its employee.
5 It was contended that the 2nd Respondent was neither a party in the proceedings that were pursuant to the stipulations of the Work Injury Benefits Act nor those that led to the adoption of the award by the court.
6 There was no service of summons or any court process that was served on him in respect of the proceedings before the Director of Occupational Health and Safety or those before the court, respectively.
7 The 2nd Respondent/Applicant only came to learn of the judgment when they were served with a notice of entry of judgment. They were unrepresented at the hearing of the Applicant’s /Respondent’s case. As such, they were condemned unheard.
8 The draft statement of Response to the statement of claim raises triable issues. They should be allowed to defend the claim.
9 The 2nd Respondent stands to suffer great prejudice if the judgment entered on the 27th February 2025 is not set aside and a decree flowing therefrom is not stayed. The 2nd Respondent shall have been condemned unheard, contrary to the tenets of natural justice.
The Response
10 The Applicant/ Respondent asserted that the 2nd Respondent’s application is frivolous, vexatious, bad in law, incoherent and an abuse of the court process.
11 He contended that he was an employee of the 1st Respondent at all material times. On 26th September 2023, while in the course of his employment, he was involved in a road traffic accident which resulted in an amputation of his right arm.
12 The accident was reported to the said Respondent, who later reported the accident to the County Occupational Safety and Health officer in Kilifi. The form ML/DOSH/ FORM 1 bears the 1st Respondent’s details as his employer. Furthermore, the 1st Respondent indicated on the form that he was his sole employer, hence making it impossible for the 2nd Respondent to participate in any proceedings regarding the accident.
13 It is further asserted that on 4th November 2024, the County Occupational Safety and Health Office, Kilifi, assessed damages for the injury suffered by the Applicant, at KSHS. 2, 432, 769 and issued a notification to the 1st Respondent. The 1st Respondent didn’t appeal against the award.
14 The 1st Respondent, Kenya Tropical Sea Life Limited and Kenya Tropical Sea Life [EPZ] Limited are all sister companies. However, he was an employee of the 1st Respondent, though sometimes, he would be assigned duties for the sister companies.
15 The 1st Respondent refused and or neglected to settle the Director’s award, prompting him to file the matter herein. Service of court process in respect of the matter herein was effected on the Director of the three companies, Rene Dalgaad Jorgensen, by WhatsApp mobile numbers xxx-xxx-184, xxx-xxx-445, and xxx-xxx-345.
16 Subsequently, the Court order herein was served on the said Director via email.
17 The Applicant asserts that he has enjoined the 2nd Respondent in this matter because he was from time to time assigned duties to perform for them, yet they were not his employer.
Analysis and Determination
[i] Procedural History
18 For clarity of record, it is imperative to briefly set out the procedural history of this matter. Through an application dated 6th February 2025, Zaphaina Nyachoti Orembe vs Jorgensen Logistics Ltd, the Applicant sought the following orders;
I. That the court adopts the assessment of the director of occupational health and safety as an order of the court.
II. That a decree be issued in accordance with the assessment of the Director for the sum of KShs. 2, 432,769.
III. That the honourable court be pleased to award interest on the amount from the date of assessment at the rate of 14% per annum.
IV. That the costs of the application be paid by the Respondent.
19 On the 17th February 2025, the application was placed before me for orders ex parte. This Court directed that the application be served for an inter partes hearing on 27th February 2025.
20 On 27th February 2025, neither the Respondent nor their counsel was present in court to oppose the application. Considering the fact that the Court was satisfied that the application had been served on the Respondent and that they hadn’t opposed it by filing an affidavit of service or grounds of opposition, coupled with the fact that they were not present in Court, this Court allowed the application. It adopted the Director’s award as a judgment of the court.
[ii] Determination
21 At no point between the initiation of the instant matter through the application hereinabove mentioned, and the issuance of the order, was the 2nd Respondent/ Applicant made a party to the proceedings herein. Certainly, the order issued was not in any manner expressly or by implication against him.
22 The proceedings had nothing to do with the 2nd Respondent at all. The order of 27th February 2025, too. I find great difficulty in finding relevance and reasonableness in the 2nd Respondent’s / Applicant’s assertion that it was not served with any court process, and thus condemned unheard contrary to the tenets of natural justice.
23 It is imperative to point out that this Court hasn’t lost sight, that, from the material placed before it, the 2nd Respondent wasn’t a party to the Work Injury proceedings before the Director, as it wasn’t named as the employer of the Applicant, and indeed it wasn’t.
24 It will be remiss of this Court, if I do not point out that the 2nd Respondent’s application herein is couched confusedly, with the facts set out in its support so set in a manner that makes no sense at all, and the prayers sought, in a manner which presents immense difficulty as to whose order it desired to have set aside. This Court’s or the Deputy Registrar’s?
25 In light of the foregoing, it isn’t difficult for this Court to reach the inescapable conclusion that the 2nd Respondent’s application is destitute of merit, and is an abuse of the Court process. It is hereby dismissed with costs, which this Court assesses at KShs. 40,000.
Read, signed and delivered virtually in Mombasa this 24th July, 2025.