[2024] KEELRC 1361 (KLR)
The court found that the 1st respondent failed to provide any credible evidence or affidavit to support the reasons for non-attendance at multiple scheduled hearings. The excuses given were unsubstantiated, and the repeated absence, despite notices and opportunities, would result in injustice to the applicant and...
Source-derived case information.
- Citation
- [2024] KEELRC 1361 (KLR)
- Parties
- Applicant: The Heritage Insurance Company Limited; Respondent: David Fikiri Joshua; Respondent: Lion in the Sun Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Appeal 21 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause Regarding Non Attendance and Review Application
- Outcome
- Conditional opportunity granted to 1st respondent; strict compliance required or application stands dismissed.
- Judges
- M Mbarũ
- Legal Topics
- Review of Judgment, Non Attendance, Notice to Show Cause, Adjournment Fees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Heritage Insurance Company Limited
Applicant
David Fikiri Joshua
Respondent
Lion in the Sun Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause Regarding Non Attendance and Review Application
Legal Issues
- 1 Whether the 1st respondent has shown sufficient cause for non-attendance at scheduled court hearings.
- 2 Whether the application for review of judgment dated 12 October 2023 should be dismissed for non-attendance.
- 3 What conditions, if any, should be imposed for the 1st respondent to proceed with the application.
Ratio Decidendi
The court found that the 1st respondent failed to provide any credible evidence or affidavit to support the reasons for non-attendance at multiple scheduled hearings. The excuses given were unsubstantiated, and the repeated absence, despite notices and opportunities, would result in injustice to the applicant and waste of judicial resources if allowed to continue. However, considering the age of the matter and in the interest of justice, the court granted the 1st respondent a final conditional opportunity to prosecute the application for review, subject to payment of adjournment fees and costs to the applicant, and securing a hearing date within 14 days, failing which the application...
Court Disposition
Conditional opportunity granted to 1st respondent; strict compliance required or application stands dismissed.
Orders
- 1st respondent to pay court adjournment fees for 13 March 2024 and 16 April 2024 at KES 10,000.
- 1st respondent to pay the applicant costs for attendance on both dates at KES 10,000.
Full Case Text
Judgment text and source record
29 paragraphs
Heritage Insurance Company Limited v Joshua & another (Appeal 21 of 2019) [2024] KEELRC 1361 (KLR) (6 June 2024) (Ruling)
Neutral citation: [2024] KEELRC 1361 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Appeal 21 of 2019
M Mbarũ, J
June 6, 2024
Between
The Heritage Insurance Company Limited
Applicant
and
David Fikiri Joshua
1st Respondent
Lion in the Sun Limited
2nd Respondent
Ruling
1. The ruling herein relates to a notice to show cause issued by the court on 13 March 2024 when the matter came up in court for the hearing of the 1st respondent’s application dated 12 October 2023 but they were absent. The court directed the parties to attend court on 10 April 2024, the date fell on a gazette Public Holiday.
2. The court on its motion allocated a mention date for 17 April 2024 and served notices to the parties.
3. On the due date, only the appellant attended. The respondents remained absent.
4. A fresh Notice to Show Cause was issued for 6 May 2024 and the court served the parties.
5. On the due date, 6 May 2024, the respondent's advocate attended. On the Notice to Show Cause why the matter should not be dismissed for non-attendance, the respondents submitted that on the date the matter was in court, he was before another court which on 10 April 2024 fell on a Public Holiday. On 16 March 2024, there was no attendance due to connectivity challenges. He tried calling the registry staff to no avail. He could not recall which court officer/assistant he called for help to log into the court session.This ruling is necessary to document.This is a 2019 matter.The judgment herein was delivered on 4 June 2021.
6. The 1st respondent filed an application dated 12 October 2023 seeking a review of the judgment.
7. The 1st respondent attended at the registrar and was allocated a hearing date for 21st February 2024 but on the due date, there was no attendance. A Notice to Show Cause why the application should not be dismissed for non-attendance was issued for 10 April 2024 which fell on a Public Holiday upon which fresh notice was issued for 17 April 2024 where the 1st respondent remained absent as outlined above.
8. The essence of these mentioned dates and notices so far issued is to secure the 1st respondent’s right to be heard on its application. Upon filing an application dated 12 October 2023 and taking a hearing date, the 1st respondent failed to attend court. The appellant religiously has attended court sessions.
9. The submissions on the Notice to Show Cause by the 1st respondent that non-attendance arose out of a mistake by the advocate is not supported by any evidence or Affidavit as to the circumstances indicated. There is no good cause given as to why there was no court attendance on 21st February or 13 March 2024 as directed.
10. For the court to allow this inaction would result in mention and hearing dates being allocated without attendance. These dates so far allocated are for the sole purpose of hearing the 1st respondent’s application and the non-attendance as outlined if allowed to proceed will result in injustice to the appellant and a waste of court time. Litigation should come to an end.
11. Taking note of the age of the file and the judgment on record, the court will give conditional and one last chance to the 1st respondent.
12. The 1st respondent is hereby given the following directions and conditions;a.Pay court adjournment fees for 13 March 2024, and 16 April 2024 at ksh.10,000;b.Pay the appellant costs for attendance on both dates at (a) above all at Ksh.10,000;c.On the application dated 12 October 2023, secure a hearing date within the next 14 days failure to which, the application stands dismissed as of 24 June 2024;Orders accordingly.
Delivered in open court at Mombasa this 6 day of June 2024. M. MBARŨJUDGEIn the presence of:Court Assistant: Japhet……………………………………………… and ………………………...…………………Page 2 of 2