[2016] KEELRC 496 (KLR)
The court found that the respondent failed to provide credible evidence explaining counsel's absence at the hearing of the application dated 2nd September 2016. No affidavit from Mr. Ratemo was filed, and no details of the alleged High Court engagement were provided. Given the urgency of the matter and the...
Source-derived case information.
- Citation
- [2016] KEELRC 496 (KLR)
- Parties
- Claimant: Eunice Mwanyalo; Respondent: Kiprop Bundotich; Respondent: Paul Maiyo; Respondent: Ninesh Pandya; Respondent: Kenya Transporters Association
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 179 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Dismissed Application
- Outcome
- application dismissed with costs to the claimant
- Legal Topics
- Reinstatement of Application, Dismissal for Nonattendance, Execution of Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Mwanyalo
Claimant
Kiprop Bundotich
Respondent
Paul Maiyo
Respondent
Ninesh Pandya
Respondent
Kenya Transporters Association
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Dismissed Application
Legal Issues
- 1 Whether the respondent has shown sufficient cause for non-attendance to warrant reinstatement of the dismissed application.
- 2 Whether the application to reinstate is merited given the delay in satisfying the award.
Ratio Decidendi
The court found that the respondent failed to provide credible evidence explaining counsel's absence at the hearing of the application dated 2nd September 2016. No affidavit from Mr. Ratemo was filed, and no details of the alleged High Court engagement were provided. Given the urgency of the matter and the long-standing unsatisfied award, the court held that the application to reinstate the dismissed application lacked merit and was intended to delay execution. The respondent was not entitled to the indulgence sought, and the application was dismissed with costs to the claimant.
Court Disposition
application dismissed with costs to the claimant
Orders
- Application dated 22.9.2016 is dismissed with costs to the claimant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT
AT MOMBASA
INDUSTRIAL CAUSE NO. 179 OF 2013
BETWEEN
EUNICE MWANYALO……………………………….………….............. CLAIMANT
VERSUS
KIPROP BUNDOTICH
PAUL MAIYO
NINESH PANDYA
(Sued as Chair, Secretary and Treasurer respectively of the
KENYA TRANSPORTERS ASSOCIATION sued on their behalf
and on behalf of members of the Association) .........................RESPONDENTS
______________________________________________________________________________
RULING
1. Award of this Court was delivered on 27. 2.2015, directing the Respondent to pay to the Claimant a total of US Dollars 26,500. This is over 1 year ago.
2. The Respondent filed an application dated 2nd September 2016, seeking to vary terms of payment agreed to between the Parties, so that payment would commence January 2017.
3. This application came up for hearing on 22nd September 2016. The Respondent and their Advocates were not in Court, and the Claimant’s Advocate applied to have the application dismissed. The Court granted the order of dismissal.
4. The Respondent filed the application dated 22nd September 2016, seeking to have the application of 2nd September 2016 reinstated.
5. Mr. Omari for the Respondent explains that on the 22nd September 2016, he was held up at the High Court, and instructed Mr. Ratemo to hold his brief. Mr. Ratemo was held up in traffic and failed to hold brief. The dismissed application raised fundamental issues, and the Respondent should not be condemned unheard.
6. Mr. Asewe answers that the details of the High Court case, which led to Mr. Omari’s absence, have not been given. There is no affidavit sworn by Mr. Ratemo. The application is meant to delay execution.
7. The Court notes it is well over 1 year since Award was delivered. The Award remains unsatisfied, and the Respondent seeks to commence payments in January 2017.
8. The current application is meant to afford the Respondent time, in meeting the full award. There is no evidence shown that Mr. Omari was held up at the High Court, or that he instructed Mr. Ratemo to hold his brief here. The application was brought under Certificate of Urgency. Mr. Omari should have been present here to prosecute the application given the urgency. The application has no merit.
IT IS ORDERED:-
a) Application dated 22. 9.2016 is dismissed with costs to the Claimant.
Dated and delivered at Mombasa this 14th day of October 2016.
James Rika
Judge