[2019] KEELRC 579 (KLR)
The court found that the Respondent failed to provide a satisfactory explanation for its default in filing the Statement of Response. The affidavit by the previous advocate, Mr. Njeru, established that the Respondent did not supply instructions or respond to correspondence, and this was not refuted by the Respondent...
Source-derived case information.
- Citation
- [2019] KEELRC 579 (KLR)
- Parties
- Applicant: Edward Mwaivu Mlacha; Respondent: Bob Morgan Services Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 160 of 2018
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Ex Parte Judgment and for Leave to File Response
- Outcome
- Application dismissed except for change of advocates; costs to the Claimant.
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Ex Parte Judgment, Setting Aside Judgment, Advocate Ceasing to Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Mwaivu Mlacha
Applicant
Bob Morgan Services Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Ex Parte Judgment and for Leave to File Response
Legal Issues
- 1 Whether the Respondent has provided sufficient grounds to set aside the ex parte judgment.
- 2 Whether the Respondent should be granted leave to file its Statement of Response out of time.
- 3 Whether the change of advocates and alleged laxity of previous counsel justify the orders sought by the Respondent.
Ratio Decidendi
The court found that the Respondent failed to provide a satisfactory explanation for its default in filing the Statement of Response. The affidavit by the previous advocate, Mr. Njeru, established that the Respondent did not supply instructions or respond to correspondence, and this was not refuted by the Respondent or its new advocates. The court held that the position taken by the Claimant was well-founded and that there was no basis to interfere with the ex parte judgment. The only order granted was the discharge of the previous advocates and leave for the new advocates to come on record; all other prayers in the Respondent's application were declined.
Court Disposition
Application dismissed except for change of advocates; costs to the Claimant.
Orders
- The Law Firm of Njeru & Company is discharged from the proceedings, and the Law Firm of Sindinyu Njau & Company granted leave to act for the Respondent.
- Other orders sought in the application filed by the Respondent on 16th July 2019 are declined.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NUMBER 160 OF 2018
BETWEEN
EDWARD MWAIVU MLACHA...........................................CLAIMANT
VERSUS
BOB MORGAN SERVICES LIMITED...........................RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Nyakoni Ratemo & Company, Advocates for the Claimant
Sindinyu Njau & Company for the Respondent
______________________________________
RULING
1. The Claim proceeded ex parte, the Respondent having failed to file a Statement of Response.
2. Hearing proceeded on formal proof on 4th March 2019. It is noteworthy, that on the hearing date, the Respondent’s Advocates sought adjournment on the ground that they had on the date of hearing, filed an Application for leave to cease acting for the Respondent.
3. The Court declined the plea for adjournment, and the Claimant gave evidence closing his case on the same date, 4th March 2019.
4. Judgment was delivered on 20th June 2019, granting the Claimant terminal benefits and compensation for unfair termination, totaling Kshs. 388,748. The Claimant was allowed also, the prayers for Certificate of Service, Costs and Interest.
5. The Respondent has through a different Law Firm, filed an Application dated 16th July 2019, seeking among other orders, that: there be a stay of execution of Judgment; the ex parte proceedings and Judgment are vacated; and the Respondent is granted leave to file its Statement of Response.
6. The Application is based on the Affidavit of Branch Manager Patrick Ochieng’, sworn on 16th July 2019.
7. Ochieng’ complains that the Respondent has been locked out of participating in a fair trial. He complains that his previous Advocates were lax. Further, Ochieng’ states that the Respondent has a good Response to the Claim, as shown in the exhibited Draft Statement of Response.
8. The Claimant filed a Replying Affidavit sworn by himself, on 6th August 2019. His position is that the Application filed by the Respondent is frivolous, sham and aimed at denying the Claimant the fruits of his Judgment.
The Court Finds:-
9. In light of the Application on record, filed by Respondent’s previous Advocates, asking for leave to cease acting for the Respondent, the Court does not see any ground to deny prayer number 2, of the Notice of Motion filed by the Respondent on 16th July 2019.
10. Consequently, it is ordered that the Law Firm of Njeru & Company is granted leave to cease acting for the Respondent, and the Law Firm of Sindinyu Njau & Company, granted leave to act for the Respondent.
11. The Respondent blames its previous Advocates for laxity. These Advocates stated in their Application for leave to cease acting, that the Respondent stopped giving instructions to its previous Advocates, making it difficult for the Advocates to continue prosecuting the brief. The Affidavit sworn by Mr. Timothy Njeru, an Advocate of the High Court of Kenya, on 2nd March 2019 states that the Respondent had failed to supply the Advocates with details of their Response and instructions on how to proceed with the Response. Mr. Njeru states the Respondent did not reply to his letters, or visit his Chambers to issue instructions.
12. The Respondent, upon instructing the current Law Firm to replace the previous one, has not said anything about the contents of Mr. Njeru’s Affidavit on record.
13. There is no refutation of those contents. Ochieng’ does not exhibit any instructions note or letter, given to Njeru & Company, to proceed with Respondent’s brief. The Respondent and its current Advocates must know there is an Affidavit by Mr. Njeru on record.
14. The position taken by the Claimant, that default in filing of the Statement of Response has not been explained satisfactorily, is well-founded in fact, particularly taking into account the contents of Mr. Njeru’s Affidavit on record.
15. The Court does not have ground to warrant revisiting, or interference in any manner, with the ex parte Judgment on record.
16. Relying on Nairobi Court of Appeal Civil Application No. 243 of 2016, Joseph Mutio Kinyambo V. Philomena Karai Mulu, the Court concludes:-
“I think time has come, when a litigant seeks exercise of Court’s discretion, while blaming the mistake of Counsel, very high standard should be placed on the litigant to demonstrate that he was not the cause of the mistake, by demonstrating with clear documentary evidence, what efforts he put to follow his own Appeal (read Cause).”
IT IS ORDERED:-
a. The Law Firm of Njeru & Company is discharged from the proceedings, and the Law Firm of Sindinyu Njau & Company granted leave to act for the Respondent.
b. Other orders sought in the application filed by the Respondent on 16th July 2019 are declined.
c. Costs to the Claimant.
Dated and delivered at Mombasa this 24th day of October 2019.
James Rika
Judge