[2021] KEELRC 1038 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO 363 OF 2017

JOHNSON OTSIENO OGOLA.................................................CLAIMANT

VERSUS

HATARI SECURITY GUARDS LTD...................................RESPONDENT

RULING

1. On 27th July 2021, this matter proceeded ex-parte. This is after the Respondent in the cause entered appearance but failed to file a Memorandum of Reply to the Claim.

2. It is perhaps important to point out that since the Respondent had entered appearance in the matter, its lawyers on record were served with all relevant court processes before the trial took off. These include service of the Hearing Notice dated 13th July 2021 setting down the matter for hearing on 27th July 2021. The Respondent concedes all these.

3. Apparently, upon service of a Judgment Notice dated 9th August 2021, the Respondent (now the Applicant in this application) instructed its lawyers now on record to file the application dated 16th August 2021 seeking for inter alia, stay of proceedings and reopening of the cause for inter-partes hearing. The argument by the Applicant is that it was not notified of the on goings in the cause. As a result, it did not get the opportunity to defend the suit.

4. The application is opposed by the Claimant (now Respondent in this application). He has filed a replying affidavit.

5. The court heard the parties on the application on 9th September 2021. The thrust of the Applicant’s case is that it was not notified of the proceedings in the cause by its lawyers, M/S Githinji Mwangi & Co Associates, Advocates. That although the said lawyers kept accepting court processes in the matter including the Hearing Notice dated 13th July 2021 they never relayed this information to their client (the Applicant). As a result, the cause proceeded to trial without the Applicant’s input. That the Applicant only came to learn of this development when it was told by an employee of M/S Githinji Mwangi and Co Associates that the matter was now pending for judgment.

6. The Applicant prays that it should not be punished for the mistakes of its lawyers. That it should be permitted to ventilate its meritorious defense on the matter.

7. The Respondent opposed the motion. In the view of the Respondent, the Applicant was merely obstinate having elected to deliberately ignore all court processes in the cause. That this is not a case of excusable mistake which will entitle a court to set aside proceedings but one of either deliberate failure to honour court processes or negligence on the part of the Applicant and its former lawyers.

8. I have listened to the opposing arguments. The beginning point in considering this matter is the pronouncement in Shah v Mbogo and Another [1967] EA 116. The court on a similar matter observed as follows:-

“This discretion (to set aside ex parte proceedings or decision) is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”

9. What I understand the court to be saying in the matter is that:-

a) The court has discretion to set aside ex-parte proceedings.

b) However, this discretion ought to be exercised not capriciously but judiciously.

c) That the court, in order to ensure judicious exercise of this discretion must consider whether the slip that resulted in the ex-parte proceedings being undertaken was occasioned by excusable mistake, error or inadvertence.

d) That the discretion to grant orders setting aside such proceedings is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”

10. In Wachira Karani v Bildad Wachira [2016] eKLR, the learned judge underscored the need for there to be sufficient cause to warrant setting aside of ex-parte proceedings that have been taken validly. The court defined sufficient cause as follows:-

“Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause...”

11. In Civil Appeal 1467 of 2011 Parimal vs Veena Bharti (2011),the Supreme Court of India observed as follows in relation to what constitutes sufficient cause:-

“Sufficient cause means that the parties had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been ‘not acting diligently …”

12. Does the Applicant meet the foregoing requirements? It is not in dispute that M/S Mwangi Githingi and Co Advocates were the appointed agents of the Applicant in this matter. While the Applicant now blames them for inaction by failure to notify it of developments in the cause, there is nothing to verify these assertions. There is nothing to demonstrate that it is the lawyers and not the Applicant who ignored court processes. While, there is proof that the lawyers received court processes in the matter, there is no sufficient proof that they did not relay information on this to the Applicant and that the Applicant elected to ignore it for some other reason. At least an affidavit by the person who is said to have informed the Applicant of the impending judgment would have sealed this lacuna.

13. Further the suit was filed in February 2017. And the impugned proceedings happened in July 2021 about four years down the line. I asked what steps the Applicant had taken to follow up the cause as a diligent litigant even if its lawyers had let it down. Apart from stating that the matter had been inactive, no other evidence of diligence in following up the cause on the part of the Applicant was provided. The Applicant seemed to have been awoken only by the fact that the cause which has been lying unprosecuted in court for four years was now due for judgment.

14. In relation to the action by M/S Mwangi Githinji and Co Advocates, it is plain that they received court processes but failed to attend court. They did not seek to withdraw from the suit. Instead, the lawyers observe on the Judgment Notice dated 9th August 2021 that they are not on record in the cause when all evidence on record points to the contrary. This cannot be considered as an excusable mistake. It is plain negligence on their part.

15. As a result, I do not see evidence of a party who has acted diligently in this behavour. On the contrary I see negligence in processing the cause both on the part of the Applicant and its former Advocates. And this is what I am asked to look out for and refuse to allow if the guidelines in Shah v Mbogo are to be adhered to.

16. I see no sufficient cause to warrant setting aside of the impugned proceedings. Accordingly, the application is dismissed with costs to the Claimant/Respondent.

DATED, SIGNED AND DELIVERED ON THE 10TH DAY OF SEPTEMBER 2021

B O M MANANI

JUDGE

In the presence of:

.....................................for the Claimant

.....................................for the Respondent

ORDER

In view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th April 2020, this judgment has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.

B O M MANANI

JUDGE