[2022] KEELRC 200 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT

AT MOMBASA

CAUSE NO. 593 OF 2016

ALFRED OKULI EKESA...................................................................................................CLAIMANT

VERSUS

SAS SECURITY SERVICES LTD.................................................................................RESPONDENT

R U L I N G

1. The suit herein is a 2016 matter, having been instituted by the Claimant vide a Memorandum of Claim dated 9th August 2016 and filed in Court on the same date. The Respondent did not enter appearance or file Response to the Claimant’s claim, though there is on record an affidavit of service (filed in Court and paid for on 27th October 2016) indicating that the Respondent was served with the Claimant’s claim documents on 15th October 2016.

2. Record shows that the suit was, for the first time since the date of its filing, fixed for mention by the Claimant’s Counsel on 20th September 2018, when the Court stood it over for further mention on 22nd November 2018, and directed the Claimant to serve the Respondent. The Court’s record does not, however, show what happened on the said date as no proceedings are shown to have been taken on that date. Thereafter, the suit was mentioned in Court on 13th March 2019 and 30th July 2019 respectively. The matter was finally fixed for hearing on 5th May 2021 when the same is shown to have been adjourned to 25th November 2021.

3. When the matter came up for hearing before me on 25th November 2021, Mr. Egunza appeared for the Respondent and told the Court that the Respondent had changed employees, moved offices, and that documents served on them must have gotten lost. He pleaded with the Court to allow the Respondent to defend the suit, noting that any prejudice suffered by the Claimant if the Respondent’s prayer was granted could be compensated with costs.

4. The Respondent’s plea was vehemently opposed by Miss Adagi, learned Counsel for the Claimant. Counsel submitted that the suit herein is an old matter and that the Claimant had been out of employment since his dismissal, and that justice delayed is justice denied. She further told the Court that the Claimant had travelled from Mumias for the sole purpose of the hearing.

5. Upon hearing submissions by Counsel for both parties herein, I granted an adjournment at the instance of the Respondent and marked the same as the last on the part of the Respondent. I further granted the Respondent seven days to file and to serve all its documents. I also granted the Claimant corresponding leave to file and serve further documents within seven days of service, if need be, and fixed the suit for hearing on 15th December 2021.

6. When the suit came up for hearing on 15th December 2021, there was no appearance on the part of the Respondent, which had not filed any documents pursuant to the Court’s orders dated 25th November 2021. The Claimant’s case was heard and was closed. Counsel for the Claimant sought to be given two days to file written submissions, and the request was granted by the Court. The suit was then fixed for mention on 20th December 2021 to confirm filing of the Claimant’s submissions and to fix a date for judgment.

7. When the suit came up for mention on 20th December 2021, Counsel for the Claimant confirmed filing of the Claimant’s submissions (which are shown to have been filed on 16th December 2021) and prayed for a judgment date. On his part, Counsel for the Respondent drew the Court’s attention to the Respondent’s application dated 17th December 2017 and filed in Court on the said date (17th December 2021), and sought the Court’s directions on the application. That is the application before me now.

8. The Respondent’s Notice of Motion application dated 17th December 2021 is expressed to be brought under Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63 of the Civil Procedure Act. The Respondent/Applicant seeks orders:-

a) that service of the application be dispensed with in the first instance and the same be certified urgent.

b) that after hearing the application, the Court be pleased to set aside the exparte proceedings herein made (sic) on 15th December 2021 in default of the Respondent (sic) and the Respondent be granted leave to file his/her Response and documents in the cause.

c) that costs be provided for.

9. The application, which was filed alongside a Notice of Appointment of Advocates, is premised on the supporting affidavit of DAVID KAMAU MWUNYI, the Respondent’s Operations Manager, whereby it is deponed, inter-alia:-

a) that the deponent was aware of the suit until recently.

b) that the deponent had been informed by the Respondent’s Advocates that the Response was made on 18th June 2021 awaiting documents to be filed together and that the company should be accorded a chance to cross examine the Claimant; and that the ex-parte proceedings ought to be set aside as a matter of right for this Court to deliver justice to both parties.

c) that fairness, the rules of natural justice, and overriding Rules of Civil Procedure demand that the Respondent/Applicant be heard before any adverse finding can be made against it.

d) that the Respondent/Applicant has good Response that raises triable issues.

e) that the Claimant will not suffer any damage that cannot be compensated with costs.

10. The application is opposed by the Claimant, whose Counsel filed a Replying Affidavit on 5th January 2022, sworn by NOEL ANZIANI ADAGIAdvocate on 3rd January 2022. It is deponed on behalf of the Claimant/Respondent; inter-alia:-

a) that the Respondent had attempted to sneak in the application (herein) and avoided to comply with the orders of this Court made on 25/11/2021 requiring the Respondent to file a Response and other accompanying documents within seven days of that date and to also pay cost of ksh.10,000 to the Claimant before the next hearing date, which was 15th December 2021. That the Respondent should not be allowed audience on the application, having already been granted orders he is seeking and having failed to comply with the same.

b) that the application is misconceived, misplaced, incompetent and does not satisfy the requirements for setting aside of proceedings and is only meant to delay the suit further.

c) that the Respondent has failed to state any reasons as to why the matter proceeded ex-parte on 15th December 2021; and has not shown sufficient cause why there was no attendance in Court on 15/12/2021.

d) that the right to setting aside is not automatic, but is depended on the facts and circumstances of each particular case.

e) that the hearing date for 15/12/2021 was fixed by consent in Court 25/11/2021 in the presence of Counsel for both parties, and that the Respondent’s Counsel has not attempted to explain why he did not attend Court or failed to file Response and other documents as directed on 25/11/2021.

f) that having granted the Respondent a chance to file a Response and documents on 25/11/2021, the Court is functus officio on issuing of similar orders to the Respondent/Applicant; and that the application is res judicata

g) that the suit herein has been pending in Court since 2016, and the Claimant stands to suffer prejudice should the application be allowed.

11. Parties filed written submissions on the application pursuant to the Court’s directions in that regard, which I have considered.

12. Under Rule 22(1) of the Employment and Labour Relations Court (Procedure) Rules 2016, this Court can proceed with the hearing of a case before it in the absence of any party thereto if both parties have notice of the hearing. In the present case, the hearing date (15th December 2021) was fixed by the Court on 25th November 2021 in the presence of Counsel for both paties. Both the Respondent and its Counsel did not attend Court for the hearing on 15th December 2021, and no reason whatsoever was given for their absence. The Claimant attended Court with his Counsel, ready to proceed with the hearing, and I allowed hearing to proceed ex-parte. The Claimant’s case was heard and was closed.

13. It is to be noted that although the Respondent was duly served with claim documents way back in the year 2016, a fact that the Respondent never denied, and indeed admitted through its Counsel on 25th November 2021, no Response to the claim or witness statements/affidavits and documents were filed. Indeed, on 25th November 2021, the Respondent’s Counsel, who had not even filed a Notice of Appointment of Advocates, but whom I nevertheless allowed to address the Court, sought and was granted leave to file all the documents (that the Respondent needed to file). For record purposes, I made the following orders:-

“(1) hearing is adjourned at the instance of the Respondent. This is purely in the interest of justice. It is the last adjournment on the part of the Respondent.

(2) Respondent is granted seven (7) days to file and serve all its documents.

(3) the Claimant is granted corresponding leave to file and serve further documents within seven (7) days from the date of service, if need be.

(4) todays costs of ksh.10,000 are awarded to the Claimant, to be paid before the next hearing date.

(5) hearing on 15/12/2021

14. The Respondent/Applicant did not comply with the foregoing orders. It squandered the opportunity given to it by this Court to file all the documents that it needed to file. It is quite amazing that the Respondent/Applicant has not even mentioned the said orders in its Notice of Motion dated 17th December 2021; and has not even attempted to give reasons why it never complied with the said orders, which were given in exercise of this Court’s discretion.

15. Court Orders are always meant to be obeyed. No reason has been given as to why this Court’s said Orders dated 25th November 2021 were not complied with by the Respondent/Applicant, and no cause has been shown why the proceedings taken ex-parte on 15th December 2021 should be set aside. I decline to exercise this Court’s discretion, for a second time, in favour of the Respondent/Applicant who has clearly been indolent, and has for years slept on its right to be heard on the suit herein, even when the Court gave it an opportunity to be heard. Equity does not aid the indolent.

16. The Respondent/Applicant’s plea that the ex-parte proceedings ought to be set aside as a matter of right (on its part) for justice and fairness to be served flies on the face of its apparent indolence and and unexplained non-compliance with this Court’s specific orders dated 25th November 2021. Justice cuts two ways. This is the creed in the Court’s decision in the case of MUTHUI MULI –VS- EZEETEC LTD [2014] eKLR where the High Court held as follows:-

“Justice cuts both ways. There are rights that have accrued to the Respondent and on the basis of SHAH –VS- MBOGO, I would be misplaced to exercise my discretion as there was no excusable mistake or error. Counsel was well aware of the mater and failed to attend or obtain representation. The upshot of the foregoing is that the Claimant’s Notice of Motion Application lacks merit and is not fit for grant…”

17. Consequently, I find no merit in the Respondent/Applicant’s Notice of Motion dated 17th December 2021. The same is hereby dismissed with costs to the Claimant. The suit herein will be mentioned in Court for fixing of a judgment date on 21st April 2022. I direct, under Rule 38 of the Employment and Labour Relations Court (procedure) Rules 2016, that the Respondent may file written submissions if it so wishes; but only on matters of Law.

18. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 24TH DAY OF MARCH 2022

AGNES KITIKU NZEI

JUDGE

ORDER

In view of restrictions on physical Court operations occasioned by the COVID-19 Pandemic, this judgment has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of Court fees.

AGNES KITIKU NZEI

JUDGE

Appearance

Miss Adagi for Claimant

No appearance for Respondent