[2018] KEELRC 106 (KLR)
The court found that the respondent was duly served with notice of the hearing, as evidenced by the affidavit of service, and that the alleged confusion due to consolidation of files did not justify setting aside the entire proceedings or starting the hearing de novo. However, in the interests of justice, the court...
Source-derived case information.
- Citation
- [2018] KEELRC 106 (KLR)
- Parties
- Respondent: Galgalo Wako Boru & 10 Others; Applicant: Jianxi Zhongmei Engineering Construction Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 489, 490, 491, 492, 493, 494, 495, 496, 497, 498, 499 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Hearing
- Outcome
- Application partially allowed.
- Judges
- AN Makau
- Legal Topics
- Setting Aside Ex Parte Proceedings, Service of Process, Consolidation of Causes, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Galgalo Wako Boru & 10 Others
Respondent
Jianxi Zhongmei Engineering Construction Company Limited
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Hearing
Legal Issues
- 1 Whether the ex parte hearing should be set aside due to alleged inadvertent mistake by the respondent's advocate.
- 2 Whether proper service of hearing notice was effected on the respondent.
- 3 Whether the respondent should be allowed to call its witness without recalling the claimants or commencing the hearing de novo.
Ratio Decidendi
The court found that the respondent was duly served with notice of the hearing, as evidenced by the affidavit of service, and that the alleged confusion due to consolidation of files did not justify setting aside the entire proceedings or starting the hearing de novo. However, in the interests of justice, the court allowed the respondent to call its witness at a future hearing date, without recalling the claimants or restarting the hearing. The court also awarded thrown away costs to the claimants for the delay caused by the respondent's application, to be paid within 30 days, failing which the leave to defend would be vacated.
Court Disposition
Application partially allowed.
Orders
- Respondent allowed to procure attendance of its witness for hearing at a future date.
- Claimants will not be recalled and hearing will not start de novo.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
CAUSE NO. 489 OF 2017
(As consolidated with Causes Nos. 490, 491, 492, 493, 494, 495, 496, 497, 498, 499 all of 2017)
GALGALO WAKO BORU &10 OTHERS....................CLAIMANT/RESPONDENTS
VERSUS
JIANXI ZHOGMEI ENGINEERING
CONSTRUCTION COMPANY LIMITED....................RESPONDENT/ APPLICANT
RULING
1. The Notice of Motion application before me is the Respondent’s application dated 31st May 2018 seeking setting aside of the hearing that took place ex parteon grounds that the Respondent had filed documents in related files and that it had a bona fide defence. The Respondent asserts that the reply in the other causes being on a consolidated cause were filed on the premise that the consolidation affected all the files including the bundle before court being causes No. 489 of 2017 as consolidated with 490-499 of 2017. The Respondent asserts that the mistake was inadvertent and an excusable error on the part of the advocate. The Respondent thus sought the reset and commencement of the matter de novo. The Respondent filed submissions in which it cited the Court of Appeal decision in the case of Lingam Enterprises Ltd &4 Others vRadio Africa Limited [2015] eKLRwhere the court held that blame lay with the applicant’s advocate and that the Court of Appeal was of the view that the learned judge punished the applicants unduly. The cases of Pacifica Moraa Nyambariga &Another vThe Clerk Suneka Town Council &2 Others [2014] eKLRand that of Pithon Waweru Maina vThuka Mugiria [1983] eKLRwere also cited. The Respondent argued that the mistake should not be visited on the applicant and cited the cases of Fursys (K) Limited vSystems Integrated Ltd t/a Symphony [2005] eKLRand P.M.N vKenyatta National Hospital &6 Others [2015] eKLRfor the argument that the Respondent should not be unseated from the seat of justice due to this mistake.
2. The Claimants were naturally opposed to the grant of the motion and filed a replying affidavit through their lawyer. The gist of the affidavit was that there was no reason for the confusion alleged by the Respondent’s counsel as the summons were duly served and that prior notice was given to the Respondent’s counsel of the hearing of the matters and therefore the assertion that the matters proceeded without notice to counsel was a lie. He urged the dismissal of the motion.
3. The court has to consider various factors in setting aside. In this case a hearing took place in absence of the Respondent. The Respondent was duly served according to the record before me. The affidavit of service clearly indicates there was notice of the hearing duly notified to the Respondent. No mistake on the service of the notice is given and the Respondent/Applicant only wants to muddy the waters by alleging that the consolidation caused some confusion. Be that as it may, the court will allow the Respondent to procure attendance of its witness for purposes of hearing at a date to be set after delivery of this ruling. However the Claimants will not be recalled nor will the hearing start de novo as that would be a waste of precious judicial time. The Respondent will also pay to the Claimants thrown away costs of Kshs. 50,000/- in total, being Kshs. 5,000/- for each of the 10 files, for the delay occasioned to the causes being determined. The sum must be paid within 30 days failing which the leave granted to defend the causes will stand vacated.
It is so ordered.
Dated and delivered at Nyeri this 3rd day of December 2018
Nzioki wa Makau
JUDGE