[2021] KEELRC 104 (KLR)
The court found that the respondent's claim of ignorance regarding the conduct of hearings in open court was untenable, as the relevant information had been publicly available on the Kenya Law website and daily cause lists since September 2021. The court held that the respondent's failure to appear and prosecute its...
Source-derived case information.
- Citation
- [2021] KEELRC 104 (KLR)
- Parties
- Claimant: Isaiah Mwaniki Mathenge; Respondent: China Road & Bridge Corporation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2273 of 2015
- Procedural Posture
- Review Application / Ruling on Application to Set Aside Closure of Defence Case
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Reopening of Defence Case, Review of Court Orders, Natural Justice, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Mwaniki Mathenge
Claimant
China Road & Bridge Corporation
Respondent
Procedural Posture
Review Application / Ruling on Application to Set Aside Closure of Defence Case
Legal Issues
- 1 Whether the court should review and/or set aside the orders closing the defence case and all consequential orders.
- 2 Whether the defence case should be reopened to allow the respondent to present its witnesses.
- 3 Whether the respondent was denied the right to be heard contrary to the rules of natural justice.
Ratio Decidendi
The court found that the respondent's claim of ignorance regarding the conduct of hearings in open court was untenable, as the relevant information had been publicly available on the Kenya Law website and daily cause lists since September 2021. The court held that the respondent's failure to appear and prosecute its defence case was not justified, and that the application to review and set aside the orders closing the defence case lacked merit. The court emphasized that parties seeking equitable relief must act with candour and diligence, and that the respondent's explanations did not warrant the reopening of the defence case. Consequently, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application to review and/or set aside the orders closing the defence case and all consequential orders is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CAUSE NO. 2273 OF 2015
ISAIAH MWANIKI MATHENGE........................................CLAIMANT
VERSUS
CHINA ROAD & BRIDGE CORPORATION................RESPONDENT
RULING
1. The Respondent/Applicant filed a Notice of Motion Application dated 14th October 2021 seeking to be heard for orders that the proceedings and the court’s orders of 20th September 2021 closing the defence case and all consequential orders, be reviewed and/or set aside. Further, that the Court be pleased to order the reopening of the Defence case. The Application is based on the grounds that Counsel for the Respondent/Applicant was ready to proceed with five witnesses when the matter came up for hearing of defence case on 20th September 2021 but the call into the virtual court session when the Judge was about to begin the days call over. That considering the matter had been listed first on the cause list, when they re-joined the session after several attempts they found the Judge had adjourned the virtual session and directed that parties scheduled for hearing appear in court physically. That their efforts to reach the Judge’s Court Assistant through her mobile number were also futile and that information from the court’s registry also affirmed that all listed hearings were being heard in open court. That however when they proceeded to the courts together with three of the Defence witnesses who were ready to proceed, they were informed that the defence case in the matter had been closed due to non-appearance and parties directed to file their submissions and a mention date of 28th October 2021 was set in the absence of both Counsel for parties to confirm compliance with the filing.
2. The Applicant asserts that the Honourable Court gave the said orders without due regard to the Respondent/Applicant’s case or any directions as to how to treat the evidence that was to be tendered in the matter by the defence. The Respondent asserts it has raised triable issues in its Memorandum of Response and will be prejudiced if the intended witnesses are not examined whereas the Claimant will not be prejudiced in any way should the defence case be reopened in the interest of justice. It contends that it will be condemned unheard contrary to the rules of Natural Justice if the said proceedings and consequential orders are not reviewed or set aside and that the same will occasion it irreparable harm. The Application is supported by the Affidavit sworn on 9th October 2021 by the Respondent/Applicant’s Human Resource Manager, Veronica Ouko who reiterates the grounds of the application and avers that it is only fair and just that the Application is allowed as an end to justice. The Application elicited no response from the Claimant who also did not attend its hearing on 25th November 2021.
3. The Court directed parties through a notice on the Kenya Law website at www.kenyalaw.org on the conduct of hearings and so on. This information has been in the public domain since September 2021 and on the daily cause lists from that time prominently display this notice. It is therefore preposterous for the defendant to suggest it only became aware of the hearing of cases in open Court on the morning of the hearing. Such lies never assist a party seeking equity. Application is devoid of merit and is dismissed with no order as to costs since the Claimant did not bother to oppose it. Directions as to filing of final submissions to follow the delivery of this Ruling.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2021
NZIOKI WA MAKAU
JUDGE