[2013] KEELRC 562 (KLR)
The court found that the Respondents were properly served with the Summons to Enter Appearance and other court processes. The attendance of the 1st Respondent’s National Chairman in court to fix the hearing date was sufficient to bind the Respondents, and the argument that he lacked authority from the General...
Source-derived case information.
- Citation
- [2013] KEELRC 562 (KLR)
- Parties
- Claimant: Benter Akinyi Opan; Respondent: Kenya Union of Post Primary Education Teachers; Respondent: Akelo Misori, Secretary General; Respondent: Wicks Mwethi Njenga
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 842 of 2012
- Procedural Posture
- Review Application / Ruling on Application to Review and Set Aside Award
- Outcome
- application refused
- Legal Topics
- Service of Process, Ex Parte Proceedings, Review of Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benter Akinyi Opan
Claimant
Kenya Union of Post Primary Education Teachers
Respondent
Akelo Misori, Secretary General
Respondent
Wicks Mwethi Njenga
Respondent
Procedural Posture
Review Application / Ruling on Application to Review and Set Aside Award
Legal Issues
- 1 Whether the Respondents were properly served with court process and summons to enter appearance.
- 2 Whether the absence of the Respondents at the ex parte proceedings was justified.
- 3 Whether there are grounds to review and set aside the award delivered in favour of the Claimant.
Ratio Decidendi
The court found that the Respondents were properly served with the Summons to Enter Appearance and other court processes. The attendance of the 1st Respondent’s National Chairman in court to fix the hearing date was sufficient to bind the Respondents, and the argument that he lacked authority from the General Secretary was unconvincing. There was no credible evidence of collusion or procedural impropriety. The absence of affidavits from key officers further weakened the Respondents’ case. The court concluded that there were no valid grounds to excuse the Respondents’ absence at the ex parte proceedings or to review and set aside the award in favour of the Claimant.
Court Disposition
application refused
Orders
- The application dated 3rd May 2013 is refused.
- Interim stay of execution is lifted.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 842 0F 2012
BETWEEN
BENTER AKINYI OPAN…………….……..............……………………………………………………………………CLAIMANT
VERSUS
KENYA UNION OF POST PRIMARY EDUCATION TEACHERS…..…..............……………………….….1ST RESPONDENT
AKELO MISORI, SECRETARY GENERAL………………………...………………………………………2ND RESPONDENT
WICKS MWETHI NJENGA………………………………………………………………………………….3RD RESPONDENT
Rika J
CC. Leah Muthaka
Mr. Oduor instructed by Oduor Henry John Advocates, for the Claimant
Mr. Wicks Mwethi Njenga for the Respondents
RULING
The Respondents have filed an application dated 3rd May 2013. The application was prosecuted on 27th May 2013 by Mr. Wicks Njenga, National Treasurer of the 1st Respondent.
The application seeks to review and set aside the Award delivered in favour of the Claimant on 12th April 2013.
The Respondents allege they did not author the Statement of Response said to have been filed by the Respondents on 15th June 2012.
They claim they have never been served with the Summons to Enter Appearance. The 1st Respondent’s National Chairman Omboko Milemba, who appeared in Court on 1st August 2012 to fix the hearing date of the main Claim, did not have the authority of the General Secretary to act for the 1st Respondent. Without imputing improper motive on the part of his Chairman, Mr. Njenga submits that it was possible some Officers of the 1st Respondent colluded with the Claimant, leading to ex parte proceedings on 19th November 2012.
The application is opposed. The Claimant filed a replying affidavit, sworn on 10th May 2013. She reiterates that all Court Processes were served upon the Respondents at the 1st Respondent’s Offices. The National Chairman attended the Court in answer to a mention Notice on 1st August 2012, and took the 19th November 2012 as the hearing date. There was no attendance on the part of the Respondents at the hearing.
The Court finds the position given by Mr. Njenga unconvincing. His Chairman Omboko Milemba attended Court on 1st August 2012. It is preposterous to argue that he needed the authority of the General Secretary to taken procedural directions in Court, and that because he did not have such written authority, the procedural orders given on 1st August 2012 did not bind the Union.
There is adequate evidence the Respondents were served with Summons to Enter Appearance. They filed a Statement of Response, which was served upon the Claimant. Mention Notices were served, and it was not by chance, that the Chairman attended Court and took a hearing date. Mr. Njenga alluded to the presence of collusion between the Claimant and some Officers of the 1st Respondent, to deny the Respondents a hearing. There were no affidavits sworn by the Chairman or the General Secretary, explaining their respective roles in this dispute, particularly in light of the suggestion by Mr. Njenga of the presence of collusion.
There may well be factions within KUPPET, but these cannot be allowed to affect the expeditious hearing and disposal of disputes at the Industrial Court. The Chairman, the General Secretary and the Treasurer need to get their act together in facilitating the administration of justice.
There are no grounds to excuse the absence of the Respondents from the Court when ex parte proceedings took place. IT IS HEREBY ORDERED:-
(a) The application dated 3rd May 2013 is refused;
(b) Interim Stay of Execution is lifted;
(c) No order on the costs.
Dated and delivered at Nairobi this 28th day of June 2013
James Rika
Judge