[2024] KEELRC 13225 (KLR)

Gongera v Mount Kenya University (Cause E958 of 2021) [2024] KEELRC 13225 (KLR) (25 November 2024) (Ruling)

Neutral citation: [2024] KEELRC 13225 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E958 of 2021

JW Keli, J

November 25, 2024

Between

Prof. George Gongera

Claimant

and

Mount Kenya University

Respondent

Ruling

1. The applicant vide Notice of Motion Application dated 29th January 2024 brought under Section 12 (3) (vii) of the Employment and Labour Relations Court Act. Rules 25 (4) and 28 (1) (g) of the Employment and Labour Relations Court Rules. Order 50 Rule 6. Order 51 Rule I of the Civil Procedure Rules and all other enabling provisions of the law, sought for the following Orders-1. Spent2. The Honourable Court be pleased to extend/enlarge the time within which the Respondent herein be allowed to pay throw away costs as ordered vide Ruling delivered on 19th October 2023. 3.Costs be provided for.

2Grounds of the application:1. This Court delivered ex-parte judgment based against the Respondent on 27th July 2023, Notice of Delivery of Judgment having been sent to the Respondent herein from the Court Registry vide their email dated 22nd July 2023, that the said Judgment would be delivered on 27th July 2023. 2.We filed their Application dated 31st July 2023, in which they sought orders to set aside the said Judgment and the same was heard and Ruling delivered on 19th October 2023, in which the Judgment delivered on 27th July 2023 was set aside and the Respondents herein ordered to file their Statement of Response to the Claim and subsequently pay throw away costs within fourteen (14) days from the date of the said Ruling.3. The said Ruling additionally provided that we pay throw away costs of Kshs.30,000/=to the Claimant herein within the said 14 days from the date of delivery of the Ruling.4. We thereafter filed and served their Response to the Claimant's Statement of Claim together with a Notice of Preliminary Objection, both dated 26th October 2023, upon which the Claimant acknowledged receipt of the said Response, and further intimated their desire to negotiate and settle the matter herein out of Court.5. We had I received instructions from the Respondent to process the cheque for the throw away costs, and had equally written the same to the Claimant's Advocates, dated 26th November 2023, upon which we received the Claimant's email communication on pursuance of an amicable settlement.6. We thus decided to pursue the said negotiations on the Respondent's instructions and thus held onto the cheque, in the spirit of the said negotiations being successful, upon which a one off payment cheque would be issued, inclusive of the said throw away costs.7. It is during the subsistence of these negotiations that the 14 days given by this Honorable Court indeed lapsed before conclusion of the said negotiations, upon which to our dismay, the Claimant herein went ahead to serve us with their Application dated 2nd November 2023, seeking to have our Response to Statement of Claim dated 26th October 2023 struck out and for the Exparte Judgment delivered in this matter to be reinstated.8. The same was a shock to ourselves, as aII along we had been under the impression that negotiations were ongoing and that the same were being done in good faith as between the parties herein.9. The Claimant does not dispute the fact that there is a proper Response to Statement of Claim on record that indeed raises triable issues that ought to be considered by this Honourable Court, at full trial. The Claimant has instead chosen o solely focus on a technicality.10. A cursory look and the Notice of Preliminary Objection filed with the Response to Statement of Claim reveals that the Respondent's Response is hinged on the same which challenges this Honourable Court's Jurisdiction to hear and determine the matter by virtue of the said claim being time barred on account of Section 90 of the Employment Act.11. This is therefore a substantive issue that ought to be substantively considered by this Honourable Court on its own merits. The Claimant should thus not be allowed to circumvent determination of the same on account of a technicality.12. The urgency of this mater is therefore that there is a real risk of the matter herein being dismissed on purely a technicality, which as will be seen, is being brought about by bad faith on the part of the Claimant.13. The Claimant does not stand to suffer any harm if the time herein is extended for payment of throw away costs and the matter herein heard on its own merits. Any harm that might arise as a result therein can be compensated by way of damages.14. It is in the interest of justice and fair adjudication of disputes that the instant application be allowed.

3. The Application was supported by the Affidavit of Stella Nzilani who annexed copy of cheque dated 26th October 2023 (SN2), and service of response to the claim(SN3). The deponent stated that they had started negotiations and that is why the throw away costs cheque was not released. That after 14 days the claimant reinstated his application of 2nd November 2023 and seeking for the court to vacate orders on throw away costs. That their advocates tried to make payment of the throw away costs and the claimant insisted on negotiations upon which the claimant forwarded to them the list of students he had supervised. (SN4 and 5 was correspondence from the applicant’s counsel asking for the list and response by the claimant’s counsel). Other correspondence was also annexed on the throw-away costs.

4. In response to the application the claimant presented to the court 2 affidavits. A Replying affidavit sworn by the claimant on 8th February 2024 and further by Kibagendi Assa Nyakundi, advocate. In the affidavit of Kibagendi Assa Nvakundi it is emphasized that in his ruling delivered on 19th October 2A23, the Honorable Judge had made it absolutely clear that in the event that thrown away costs were not paid within 14days days, the judgment of the court earlier set aside would revert. As a result of the ruling of the court, a motion dated 29th August 2024, seeking to allow assessment of costs before taxation was dismissed. It is conceded that on 26th October 2023, the respondent's advocate filed and served the Response to the claim. The Respondent did not forward a cheque for the throw-away costs within the time ordered by the Court. There is no application before the Court for review of the order in the ruling delivered on 19th October 2023 to have the Order reviewed. This makes the present application manifestly flawed.

5. The parties filed written submissions which the court perused.

6. The Ruling by Justice Ocharo Kebira Ordered the respondent to pay throw away costs of Ksh, 30000 to the claimant within 14 days of the ruling date. It was then stated in defaulting the judgment to revert. There was no compliance. The applicant has explained the circumstances for the non –compliance and sought for extension of time to comply.

7. The court finds that before it is an application for an extension of time to comply with the court order. The parties engaged in negotiations though without prejudice and that is a plausible reason for the non-compliance. The parties negotiated in good faith so it was not unreasonable to expect a settlement of everything including the court order on throwaway costs.

8. I find it is in the interest of justice to keep a party in the seat of justice for sufficient cause. There is a response on record. The court just like in the case of Onsumu Onchonga V Forty Place Limited 2021 e KLR allows the application for an extension of time for the Applicant to comply with the Order of court with a further Order on costs of Kshs. 10,000 payable to the claimant together with the throw-away costs of Kshs. 30000 within 14 days of this Order. This is the last opportunity granted to the respondent and no extension will be allowed on the said costs.

9. Mention on 11th December 2024 to confirm compliance and for further directions in the matter.

10. It is so Ordered.

DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 25thDAY OF NOVEMBER, 2024. JEMIMAH KELI,JUDGE.In the presence of:Court Assistant: CalebRespondent/ Applicant: - KenyattaClaimant /Respondent: Nyakundi