[2014] KEELRC 1209 (KLR)
The court found that the Respondent was properly served with all relevant notices, including an invitation to take a hearing date and a hearing notice. The Respondent's Advocates failed to attend the registry as requested and, when granted an adjournment, did not appear on the rescheduled hearing date. The...
Source-derived case information.
- Citation
- [2014] KEELRC 1209 (KLR)
- Parties
- Applicant: David Mutemi; Respondent: Hebatullah Brothers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1997 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Award
- Outcome
- application dismissed with costs to the claimant
- Judges
- L Ndolo
- Legal Topics
- Ex Parte Award, Setting Aside Judgment, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mutemi
Applicant
Hebatullah Brothers Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Award
Legal Issues
- 1 Whether the Respondent was properly served with hearing and submission notices.
- 2 Whether the Respondent was denied the right to be heard.
- 3 Whether the ex parte award should be set aside.
Ratio Decidendi
The court found that the Respondent was properly served with all relevant notices, including an invitation to take a hearing date and a hearing notice. The Respondent's Advocates failed to attend the registry as requested and, when granted an adjournment, did not appear on the rescheduled hearing date. The supporting affidavit by the Respondent's Advocate contained falsehoods, and the attempt to introduce new matters in oral submissions was deemed an abuse of court process. Consequently, the Respondent failed to establish a basis for setting aside the ex parte award, and the application was dismissed with costs to the Claimant.
Court Disposition
application dismissed with costs to the claimant
Orders
- The Respondent's application to set aside the ex parte award is dismissed.
- The Respondent shall pay costs to the Claimant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
CAUSE NO 1997 OF 2012
DAVID MUTEMI..................................................................CLAIMANT
VS
HEBATULLAH BROTHERS LIMITED...............................RESPONDENT
RULING
1. On 17th February 2014, I heard the Claimant ex parte and on 7th May 2014 I delivered an award in his favour in the sum of Kshs. 328,408. The respondent then filed an application under certificate of urgency seeking orders for stay and setting aside of the ex parte award. The Respondent's application is based on the following grounds:
That the Respondent was not served with a hearing notice;
That the Respondent was not served with a notice to file submissions;
That the Respondent has been condemned unheard.
2. In a supporting affidavit sworn by Jackson Omwenga, Advocate on 20th May 2014 it is deponed that since 25th November 2013, when parties were advised to take a hearing date at the registry the Claimant did not invite the Respondent to take a hearing date.
3. In his replying affidavit sworn on 28th May 2014, the Claimant depones that the Respondent's application is full of hearsay, falsehoods and misleading information. Specifically, this matter never came up before the Court on 25th November 2013 as alleged by the Respondent. The Claimant further depones that by notice dated 29th April 2013 which was served on 9th May 2013, his Advocates invited the Respondent's Advocates to attend the Registry on 16th May 2013 for the purpose of taking a mutually convenient date. The Respondent's Advocates failed to attend as requested prompting the Claimant to take an ex parte date being 2nd October 2013. A hearing notice dated 21st May 2013 was duly served on the Respondent's Advocates.
4. When the matter came up for hearing on 2nd October 2013, the Respondent's Advocates sought an adjournment which was granted by the Court. Counsels for the parties agreed that the matter would proceed on 17th February 2014 on which date there was no appearance for the Respondent.
5. The single issue for determination in this application is whether the Respondent has made out a case for setting side of the award of this court delivered on 7th May 2014. I have looked at the Court record against the deponements of Jackson Omwenga in the supporting affidavit sworn on 20th May 2014 and found that Mr. Omwenga's affidavit contains falsehoods.
6. In his oral submissions before the Court on 24th July 2014, Mr. Omwenga sought to introduce matters that are not contained in his affidavit sworn on 20th May 2014. This is clearly an abuse of the court process. Having found the contents of the said affidavit to be false, the Court finds no basis for the Respondent's application which is hereby dismissed with costs to the Claimant.
Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 31ST DAY OF JULY 2014
LINNET NDOLO
JUDGE
Appearance:
Mr. Nyabena for the Claimant
Mr. Omwenga for the Respondent