[2015] KEELRC 524 (KLR)
The court found that the Respondent failed to provide any reasonable or credible explanation for not filing a Replying Affidavit or ensuring representation at the hearing. The absence of an affidavit from the Clerk and the lack of clarity on why the Replying Affidavit was to be filed on the morning of the hearing...
Source-derived case information.
- Citation
- [2015] KEELRC 524 (KLR)
- Parties
- Applicant: Alfred Kaloki & 13 Others; Respondent: Sea Front Entertainment Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 55 of 2013
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- application dismissed with costs to the claimants
- Legal Topics
- Personal Liability of Directors, Setting Aside Ex Parte Orders, Unfair Termination, Enforcement of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Kaloki & 13 Others
Applicant
Sea Front Entertainment Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the Respondent provided a reasonable explanation for failing to file a Replying Affidavit and attend the hearing of the Claimants' application.
- 2 Whether the ex parte orders holding the Respondent's Directors personally liable for the decree should be set aside and the application heard afresh.
- 3 Whether the Respondent's conduct amounted to deliberate avoidance of satisfying the court's decree.
Ratio Decidendi
The court found that the Respondent failed to provide any reasonable or credible explanation for not filing a Replying Affidavit or ensuring representation at the hearing. The absence of an affidavit from the Clerk and the lack of clarity on why the Replying Affidavit was to be filed on the morning of the hearing indicated a lack of diligence and good faith. The court concluded that the Respondent's application was a continuation of its resistance to satisfy the decree and amounted to an abuse of process. Consequently, the application to set aside the ex parte orders was rejected, and the Directors remained personally liable for the satisfaction of the decree in favour of the Claimants.
Court Disposition
application dismissed with costs to the claimants
Orders
- The application dated 17th March 2015 is rejected with costs to the Claimants.
- The ruling of 10th March 2015 holding the Respondent's Directors personally liable for the decree remains in force.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
CAUSE NUMBER 55 OF 2013
BETWEEN
ALFRED KALOKI & 13 OTHERS ……………………………………………………………. CLAIMANTS
VERSUS
SEA FRONT ENTERTAINMENT LIMITED……….........……………………………………. RESPONDENT
RULING
1. The Court made a Ruling dated 10th March 2015, allowing the Directors of the Respondent Company to be held personally liable, for the satisfaction of the decree issued in favour of the Claimants against the Respondent, way back on 14th April 2014. That decree is for a sum of Kshs. 688,973, comprising terminal benefits and compensation for unfair termination. It remains unsatisfied.
2. The Application leading to the Ruling of 10th March 2015 proceeded in the absence of the Respondent. The Respondent had been granted leave to file a Replying Affidavit to the Claimant’s Application, out of time. No such Affidavit was filed. On the hearing date, the Respondent’s Advocates state they entrusted their Clerk with their file, to find an Advocate to hold brief. The same Clerk was to file the Replying Affidavit in the morning of the hearing. He failed in either case.
3. The Respondent therefore filed an Application dated 17th March 2015, seeking to have the Ruling of 10th March 2015 reversed, and the Application giving rise to that Ruling, heard afresh with the participation of the Respondent. The Application is based on the Affidavit of Counsel for the Respondent, Mr. Edwin Gikonyo Thiongo, sworn on the 17th March 2015. The Claimants replied through an Affidavit sworn by the 1st Claimant Mr. Alfred Kaloki on the 15th April 2015. Parties agreed to have the Application considered and determined on the basis of their Affidavits and Submissions on record.
The Court Finds:-
4. The Application dated 17th March 2015 is a very sad showcase of the extent to which an Employer can go, to avoid meeting its obligations to its former Employees. It is a continuation of the resistance by the Respondent, to satisfy the decree issued by the Court over 1 year ago. There was no explanation by the Respondent why its Clerk did not file the Affidavit in Reply to the Claimants’ Application as instructed, or even fundamentally, have an Advocate in Court hold the Respondent’s Advocate’s brief at the hearing. There is no Affidavit sworn by the said Clerk. It is not clear why the Respondent was filing a Replying Affidavit in the morning of the hearing. The Court agrees entirely with the decision of Justice Nzioki was Makau in Collective Bargaining Advisory Centre v. Ministry for Labour & 4 Others [2015] e-KLR,that in considering the setting aside of ex parteorders, the Court must not only examine the reason why there was no Reply to the Claim; why the Applicant failed to turn up when the orders issued; and whether the Applicant had a reasonable reply.
5. In this Application, the Respondent has not given a reasonable explanation why there was no Replying Affidavit properly filed, at the time hearing proceeded; there was no explanation why the Clerk failed to entrust the brief to any of the Advocates present in Court; and as stated at the outset, the Respondent is merely delaying and avoiding meeting its obligations to its former Employees. There was no reasonable Reply why the Directors should not be made to account. The Application dated 17th March 2015 is rejected with costs to the Claimants.
Dated and delivered at Mombasa this 25th day of September, 2015
James Rika
Judge