[2017] KEELRC 148 (KLR)
The court found that the hearing notice served on the respondent indicated the wrong place of trial, which explained the respondent's absence. This defect in service was not brought to the court's attention by the claimant, and proceeding ex parte in such circumstances would likely result in a judgment that could be...
Source-derived case information.
- Citation
- [2017] KEELRC 148 (KLR)
- Parties
- Claimant: Charles Kuchanja Mwabuje; Respondent: Vipingo Ridge Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 361 of 2016
- Procedural Posture
- Employment Cause / Ruling on Setting Aside Ex Parte Proceedings
- Outcome
- ex parte proceedings and orders set aside; matter to be heard afresh
- Judges
- J Rika
- Legal Topics
- Service of Process, Ex Parte Hearing, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kuchanja Mwabuje
Claimant
Vipingo Ridge Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Setting Aside Ex Parte Proceedings
Legal Issues
- 1 Whether the ex parte hearing and subsequent proceedings should be set aside due to improper service of the hearing notice.
- 2 Whether the hearing notice defect prejudiced the respondent's right to be heard.
Ratio Decidendi
The court found that the hearing notice served on the respondent indicated the wrong place of trial, which explained the respondent's absence. This defect in service was not brought to the court's attention by the claimant, and proceeding ex parte in such circumstances would likely result in a judgment that could be successfully challenged for want of proper service. The court held that it would be pointless and unjust to deliver an ex parte judgment under these circumstances. Therefore, the ex parte proceedings and orders made on 16th October 2017 were set aside to allow both parties a fair opportunity to be heard.
Court Disposition
ex parte proceedings and orders set aside; matter to be heard afresh
Orders
- The order made on 16th October 2017 is set aside.
- Parties to obtain a fresh hearing date.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT AT MOMBASA
CAUSE NUMBER 361 OF 2016
BETWEEN
CHARLES KUCHANJA MWABUJE........................................CLAIMANT
VERSUS
VIPINGO RIDGE LIMITED..................................................RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Omolo Onyango & Company Advocates for the Claimant
No appearance for the Respondent
RULING
1. This Claim was heard ex parte, on 16th October 2017, at Malindi.
2. The hearing date was taken in open Court at Mombasa, on 17th July 2017.
3. The date was taken by Counsel for the Claimant, in the absence of the Respondent.
4. The Order made on 17th July 2017, was that hearing would be on 16th October 2017, at Malindi.
5. After hearing on 16th October 2017, the Court reserved Judgment for 4th December 2017.
6. It has been noted that the Hearing Notice served upon the Respondent, as shown in the Affidavit of Service sworn by John Kombe on 16th October 2017, indicates the place of trial as Mombasa.
7. This defect was not brought to the attention of the Court at the hearing.
8. The failure by the Respondent to attend Court can be explained this way: the Hearing Notice gave the wrong place of trial.
9. It is pointless therefore, to prepare and deliver an ex parte Judgment which will be challenged on this strong ground of improper service of the Hearing Notice. The Claimant ought to have brought this defect to the attention of the Court, rather than proceed with the hearing ex parte.
IT IS ORDERED:-
a)The Order made on 16th October 2017 is set aside.
b)Parties to obtain a fresh hearing date.
c)No Order on the costs.
Dated and delivered at Mombasa this 4th day of December 2017.
James Rika
Judge