[2018] KEELRC 1780 (KLR)
The court found that although the respondent failed to file a defence within the prescribed period due to an administrative oversight, the suit had not yet been heard and no critical steps had been taken in the proceedings. Therefore, no prejudice would be suffered by the claimant if the defence was filed out of...
Source-derived case information.
- Citation
- [2018] KEELRC 1780 (KLR)
- Parties
- Claimant: John Thomas Ngugi Mbua; Respondent: The County Public Service Board of Kiambu
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 263 “A” of 2016
- Procedural Posture
- Employment Claim / Ruling on Application for Leave to File Defence Out of Time
- Outcome
- application allowed
- Judges
- AN Makau
- Legal Topics
- Late Filing of Defence, Court Discretion, Procedural Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Thomas Ngugi Mbua
Claimant
The County Public Service Board of Kiambu
Respondent
Procedural Posture
Employment Claim / Ruling on Application for Leave to File Defence Out of Time
Legal Issues
- 1 Whether the respondent should be granted leave to file a defence out of time.
- 2 Whether the respondent has provided sufficient reason for the delay in filing the defence.
- 3 Whether allowing the late filing would prejudice the claimant.
Ratio Decidendi
The court found that although the respondent failed to file a defence within the prescribed period due to an administrative oversight, the suit had not yet been heard and no critical steps had been taken in the proceedings. Therefore, no prejudice would be suffered by the claimant if the defence was filed out of time. Exercising its discretion under the relevant procedural rules, the court allowed the respondent to file and serve the defence, statements, and documents within seven days, with the respondent bearing the costs of the motion.
Court Disposition
application allowed
Orders
- The respondent is granted leave to file and serve a defence, statements, and documents within 7 days of the ruling.
- The defence and documents filed on 22nd February 2018 are deemed duly filed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
SUIT NO. 263 “A” OF 2016
JOHN THOMAS NGUGI MBAU .............................................. CLAIMANT
VERSUS
THE COUNTY PUBLIC
SERVICE BOARD OF KIAMBU ......................................... RESPONDENT
RULING
1. The Respondent/Applicant’s Motion seeks the leave of court to have to file a response out of time. The Respondent asserts that the legal assistant failed to diarise the defence filing. The Respondent prays that the defence and documents filed on 22nd February 2018 together with the statements of witnesses be deemed to be duly filed. The said Motion is supported by the Affidavit of Miss Makena Kaburu Advocate.
2. The Claimant/Respondent opposes the Motion and asserts that in bringing the Motion the Respondent should show the inability was as a result of a good reason. The Claimant asserts that even though the ends of justice require that each party be heard the Respondent had not taken any step to file the response or even had any effort made to defend the suit. The Claimant urged the court to dismiss the Motion as the facts pertaining to the dismissal were within its knowledge. The court was therefore urged to disallow the application.
3. The court is drawn to Rule 13(5) of the Employment and Labour Relations Court (Procedure) Rules 2016. The Rule permits a party to file a defence within 21 days of service of summons and claim. The Respondent now seeks leave to file the defence out of time. To their saving grace, the suit has not been heard yet and in the view of this court no prejudice will be suffered as critical steps in the determination of the dispute are yet to be taken. The court will exercise discretion and permit the Respondent to file and serve a defence within 7 days of today alongside the statements and documents as attached to the defence filed on 22nd February 2018. The Respondent will meet the costs of the Motion.
It is so ordered.
Dated and delivered at Nyeri this 21st day of May 2018
Nzioki wa Makau
JUDGE