[2016] KEELRC 307 (KLR)
The court held that litigants cannot expect to manage the court's diary for their own convenience and that any agreement to take a matter out of the hearing list must be sanctioned by the court. The claimant failed to comply with a peremptory order to pay costs and did not seek an extension prior to the hearing...
Source-derived case information.
- Citation
- [2016] KEELRC 307 (KLR)
- Parties
- Claimant: Evans Kamanda Kivochi; Respondent: Eldoret Mattresses Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 511 of 2014
- Procedural Posture
- Employment Cause / Ruling on Compliance With Costs Order and Adjournment Request
- Outcome
- Conditional extension of time to comply with costs order; cause to stand dismissed if non-compliance by deadline.
- Judges
- MSA Makhandia
- Legal Topics
- Costs Orders, Adjournment of Hearing, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Kamanda Kivochi
Claimant
Eldoret Mattresses Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Compliance With Costs Order and Adjournment Request
Legal Issues
- 1 Whether parties can unilaterally agree to take a matter out of the hearing list without court approval.
- 2 Whether the claimant's failure to pay costs as previously ordered justified dismissal of the cause.
- 3 Whether sufficient cause was shown to justify an adjournment or extension of time to comply with the costs order.
Ratio Decidendi
The court held that litigants cannot expect to manage the court's diary for their own convenience and that any agreement to take a matter out of the hearing list must be sanctioned by the court. The claimant failed to comply with a peremptory order to pay costs and did not seek an extension prior to the hearing date. While the court found that the cause could have been dismissed for non-compliance, it exercised discretion in the interest of justice to extend the time for compliance. The claimant was granted until 30 December 2016 to pay the ordered costs, failing which the cause would stand dismissed automatically.
Court Disposition
Conditional extension of time to comply with costs order; cause to stand dismissed if non-compliance by deadline.
Orders
- The claimant is ordered to pay the respondent Kshs 15,000 as costs on or before 30 December 2016.
- If the claimant fails to pay the costs by 30 December 2016, the cause shall stand dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 511 OF 2014
EVANS KAMANDA KIVOCHI CLAIMANT
v
ELDORET MATTRESSES LTD RESPONDENT
RULING NO. 2
1. The Court delivered a ruling on 3 May 2016 in which the Claimant was ordered to pay the Respondent Kshs 15,000/- as costs within 30 days. The ruling was occasioned by an application by the Claimant seeking warrants of arrest to be issued against a director of the Respondent on the allegation that the Respondent intended to wind up its operations in Kenya and that the 2nd Respondent intended to leave the jurisdiction (in actual fact there was no second Respondent and the named director was not a party to the Cause).
2. The Court had earlier, before the ruling directed that the Cause be heard on 26 September 2016.
3. When the Cause was called out for hearing on the scheduled date, Mr. Bichanga informed the Court that the advocates on record had agreed to have the matter taken out of the hearing list and that the Claimant had failed to pay the costs as directed.
4. Mr. Othuro for the Respondent on his part indicated that he was ready with 1 witness for the hearing, and on the purported agreement to take the Cause out of the hearing list stated that indeed Mr. Chepkwony had called him the previous day, but that he did not concede to the request for adjournment.
5. The Court reserved its ruling to today.
6. Parties cannot agree among themselves to take out a matter out of the hearing cause list. Any such agreement must have the imprimatur of the Court.
7. And for the Court to accede to such extra judicial agreements, sufficient cause must be demonstrated.
8. In this respect, any party who assumes that the Court would accede to an agreement to take out a matter must be put on notice that he (she) must be ready to proceed if necessary.
9. Litigants should not expect to run a Court’s diary at their convenience. Any adjournment must be justified by putting sufficient reasons before the Court, and where the reasons are not convincing, an adjournment would be declined.
10. In the case at hand, the Claimant failed to comply with a peremptory Court order but instead of moving Court earlier to seek indulgence or extension of time to comply, waited until the hearing date.
11. That is unfortunate because Court orders are meant to be complied with at the earliest opportunity.
12. As it is, the Claimant was not ready for the hearing and the Cause ought to have been dismissed, but in the interest of justice, the Court will extend the time to comply with the order on costs.
13. The Claimant is therefore ordered to pay the said costs on or before 30 December 2016 and on failure to comply, this Cause shall stand dismissed.
Delivered, dated and signed in Nakuru on this 2nd day of November 2016.
Radido Stephen
Judge
Appearances
For Claimant Mr. Bichanga instructed by Chepkwony & Co. Advocates
For Respondent Mr. Othuro instructed by Gicheru & Co. Advocates
Court Assistant Nixon