[2021] KEELRC 830 (KLR)
The court found that the question of whether the respondent provided the claimant with housing at Webuye Guest House is a factual dispute requiring production and proof of evidence, such as leases and payment receipts. This constitutes a triable issue that cannot be resolved summarily or by striking out the defence...
Source-derived case information.
- Citation
- [2021] KEELRC 830 (KLR)
- Parties
- Claimant: Hillary Chongwony; Respondent: County Government of Bungoma
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Cause 14 of 2019
- Procedural Posture
- Employment Cause / Ruling on Interlocutory Application to Strike Out Defence and Enter Judgment
- Outcome
- Application to strike out defence and enter judgment dismissed; matter to proceed to trial.
- Legal Topics
- Breach of Employment Contract, Remuneration Entitlements, Housing Benefits, Summary Judgment Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hillary Chongwony
Claimant
County Government of Bungoma
Respondent
Procedural Posture
Employment Cause / Ruling on Interlocutory Application to Strike Out Defence and Enter Judgment
Legal Issues
- 1 Whether the defence filed by the respondent discloses a reasonable defence to the claim for unpaid housing benefit.
- 2 Whether the respondent provided the claimant with housing as alleged, or if the claimant is entitled to monetary compensation for housing benefit.
- 3 Whether the application for summary judgment and striking out of defence is tenable under the Employment and Labour Relations Court Rules.
Ratio Decidendi
The court found that the question of whether the respondent provided the claimant with housing at Webuye Guest House is a factual dispute requiring production and proof of evidence, such as leases and payment receipts. This constitutes a triable issue that cannot be resolved summarily or by striking out the defence at this stage. The court held that the matter should proceed to trial for determination of the factual issues, and the application to strike out the defence and enter judgment was therefore declined. Directions were issued for pre-trial steps and transfer of the cause to the Bungoma court.
Court Disposition
Application to strike out defence and enter judgment dismissed; matter to proceed to trial.
Orders
- Respondent to file and serve witness statements and documents on or before 29 October 2021.
- Parties to file Agreed Issues on or before 30 November 2021.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT BUNGOMA
CAUSE NO. 14 OF 2019
HILLARY CHONGWONY CLAIMANT
v
COUNTY GOVERNMENT OF BUNGOMA RESPONDENT
RULING
1. Hillary Chongwony (the Claimant) served as the Deputy Governor, County of Bungoma from 2013 to 2017.
2. On 19 December 2019, the Claimant sued the County Government of Bungoma (the County Government) alleging breach of contract (unpaid housing benefit) during the term he served as Deputy Governor.
3. The County Government filed a Response on 12 February 2020, in which it was contended that the Claimant was not entitled to the housing benefit because he had been provided with housing facility at Webuye Guest House at the expense of the County Government.
4. The Claimant filed a Reply to the Memorandum of Defence on 27 February 2020, wherein it was asserted that the County Government had not provided a housing facility, and further that the High Court had in Petition No. 328 of 2016, Council of Governors v Salaries and Remuneration Commission decreed that Deputy Governors were entitled to housing benefit.
5. On 15 January 2021, the Claimant filed a Motion seeking orders:
(1) THAT the Memorandum of Defence filed herein on 12th February 2020 be struck out for
(a) Disclosing no reasonable defence.
(b) Being merely orchestrated and actuated by a malicious intent to delay the fair trial of the action.
(c) It otherwise constitutes van outright abuse of the court process.
(2) THAT judgment be entered for the Plaintiff against the Defendant in the sum of Kshs 5,400,000/- costs and interest as prayed in the Statement of Claim.
(3) THAT the Defendant to pay costs of this application.
6. When the Motion was placed before the Court on 10 June 2021, the Court directed the County Government to file and serve a response thereto on or before 18 June 2021.
7. The Court also directed the parties to file and exchange submissions on the Motion within set timelines.
8. During the same session, the Court indicated that it would deliver a Ruling on notice (notices were issued through the parties email addresses on 6 October 2021).
9. The County Government only filed Grounds of Opposition on 9 July 2021.
10. The main grounds advanced by the Claimant in support of the Motion were, that despite contending that it had facilitated his housing at Webuye Guest House, the County Government did not exhibit any evidence of such facilitation, and that the Salaries and Remuneration Commission had through Gazette Notice No. 6518 of 2017 prescribed that a Deputy Governor was entitled to be housed by the County Government.
11. The County Government mainly opposed the application on the grounds that the Rules of this Court did not provide for summary procedures and that the Gazette Notice and judgment relied on by the Claimant were not retrospective in application.
12. As already alluded to, the County Government had contended in its Defence that it facilitated the housing of the Claimant at Webuye Guest House.
13. The question whether the County Government facilitated the Claimant with such housing is one which requires the production and proof of facts such as leases and payment receipts with the Guest House.
14. Consequently, in the view of the Court, that would be a triable issue.
15. The Cause herein had not yet gone through pre-trial and the Court gives the following directions:
(i) The Respondent to file and serve witness statements and documents on or before 29 October 2021.
(ii) The parties to file Agreed Issues on or before 30 November 2021.
(iii) In default of agreement, Claimant’s Proposed Issues will be adopted as the trial Issues.
16. The Cause herein is transferred to the Court in Bungoma (the Deputy Registrar to transmit the file forthwith).
17. Costs in the cause.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 7TH DAY OF OCTOBER 2021.
RADIDO STEPHEN, MCIARB
JUDGE
Appearances
For Claimant BMS Advocates LLP
For Respondent Makhoha Wattanga & Luyali Associates Advocates
Court Assistant Musanga