[2013] KEELRC 131 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

CAUSE NO. 223 OF 2011

EDWIN ODUOR CHACHA……………………….………. CLAIMANT

VERSUS

DR. PHILISTERS ONYANGO

THE CHAIRPERSON BOARD OF DIRECTORS

CHILDRENS LEGAL ACTION NETWORK……….... RESPONDENT

RULING

The application for determination is the Notice of Motion dated 14th April 2013 filed by the Applicant who is the Respondent on 23rd April 2013 in this case seeking the following orders;

That this application be certified urgent and service be dispensed with in the first instance.

That this Honourable Court be pleased to order a temporary stay of execution arising from judgment delivered on 27th March 2013.

That this Honourable court be pleased to set aside its Judgment of 27th March 2013 and exparte proceedings of 18th February 2013 and all other consequential orders thereon.

That the cost be in the cause.

The application is supported by the Affidavit of Morris M. Karigi, Advocate for the Respondent sworn on 19th April 2013. He depones in the affidavit that on 15th April 2013 the Respondent called their office registry to be updated on progress in the case having been served with an award by the Claimant on 10th April 2013, that he sent a court clerk by name Richard Wachira to peruse the court file, that the court clerk informed him that award was delivered on 27th March 2013, that the case proceeded ex-parte on 18th February 2013. He further depones that the case was not diarized by him, that his failure to attend court was not deliberate but a mistake on the part of counsel which should not be visited upon his client, that his firm was not served with Judgment Notice as required by law, that if Judgment is not set aside the Respondent would suffer immensely as it did not have the opportunity to defend the claim and to cross examine the Claimant and that it is in the interest of justice to grant the application.

The Claimant filed a Replying Affidavit on 23rd May 2013. He depones in the affidavit that the record shows the Respondent was an indolent litigant who gave up on his case way before the hearing, that the advocates for the Respondent attended court only once on 11th October 2011 when the case was not heard as the court was not sitting, that on 10th May 2012 when the case was scheduled for hearing neither the Respondent nor his advocates attended court, that the Respondent and his advocates failed to attend court on 12th September and 26th October 2012 and again on 18th February 2012 when the case proceeded for hearing ex-parte, that the reason why the Respondent did not attend court is because they do not have a good defence, that justice delayed is justice denied and that the Respondent should not be heard to seek sympathy of the court.

The application was heard on 19th June 2013 when Mr. Karigi appeared for the Applicant/Respondent while the claimant was present in person. Mr. Karigi submitted that he seeks the prayers on the face of his application which substantively is to set aside judgment entered on 27th March 2013. That the ground in support of the application is that Counsel failed to attend court as counsel failed to diarize the hearing date. He referred to his affidavit which he relied on entirely. He expounded that he was in the court precincts on that day before Hon. Justice Mbaru but was not aware of the hearing of this case. He asked the court to exercise its wide discretion and set aside the judgment upon such terms as are just. He stated it is not true that the Respondent was not in court as deponed in Claimant’s Replying Affidavit and invited the court to confirm the true position from the court’s record. He submitted that the Claimant would not be prejudiced by the setting aside of the Judgment.

Mr. Edwin Oduor Chacha the Claimant submitted that this case had been in court for a long time and that all that time the Respondent was aware, that he served Hearing Notice, that the application is intended to deny him the fruits of his judgment. He urged the court to dismiss the application.

I have considered the application, the affidavits and the oral submissions made in court. The principles of setting aside ex-parte judgments are well enunciated in the many decisions on the subject. The courts have wide discretion to set aside such judgments and any consequential orders upon such terms as are just. The main concern of the courts is to do justice between the parties. In the ruling of Justice Ringera in REMCO LIMITED V MISTRY JADUA PARBAT & CO. LTD & 2 OTHERS, the Judge reviewed decisions on setting aside of judgments and stated that the discretion of courts is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. The court further stated that in exercising the discretion the court should consider among other things, the facts and circumstances both prior and subsequent and all the respective merits of the parties. The question as to whether the affected party can reasonably be compensated by costs for any delay occasioned by the setting aside of the Judgment should be considered and it should always be remembered that to deny a person a hearing should be the last resort of the court.

I have considered the reasons given by counsel for the Respondent for failure to attend court on the hearing date. Counsel failed to diarize the date of the hearing and therefore failed to attend court on the hearing date. I find this to be an excusable mistake or error for which his client should not be made to suffer.

In case of PHILIP CHEMOLO & ANOTHER V AUGUSTINE KUBENDE (1982-88) I KAR 1036, Apaloo J.A. restated the broad equitable approach to these cases as follows;

“I think a distinguished equity Judge has said; ‘Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on the merits’. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”

I agree with the sentiments of Apaloo J.A. and have considered the application herein with this perspective. I have looked at the record and believe that there was no intention on the part of the Respondent to deliberately delay Justice in this case. I find the mistake of failing to diarize the date of hearing of this case by Counsel is excusable.

For these reasons, I allow the application and set aside the judgment delivered on 27th March 2013. The Claimant has however incurred espenses and the Respondent shall therefore pay the Claimants thrown away costs which I assess at Shs.10,000/= before the date of hearing of this case.

Orders accordingly.

Read in open Court this25thday of July2013

HON. LADY JUSTICE MAUREEN ONYANGO

JUDGE

In the presence of:

Edwin Oduor ChachaClaimant present in person

No appearancefor Respondent