[2018] KEELRC 2442 (KLR)
The court found that the Respondent had demonstrated weighty grounds in the supporting affidavit that justified setting aside the ex parte orders. However, the Respondent failed to provide an adequate explanation for its absence and delay in responding to the application. Balancing the interests of justice and the...
Source-derived case information.
- Citation
- [2018] KEELRC 2442 (KLR)
- Parties
- Applicant: Kenya Engineering Workers Union; Respondent: Apex Steel Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 474 of 2017
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- Application to set aside ex parte orders allowed with conditions.
- Judges
- J Rika
- Legal Topics
- Trade Union Dues, Victimization of Union Members, Ex Parte Orders, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Engineering Workers Union
Applicant
Apex Steel Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex parte orders issued on 24th July 2017 should be set aside.
- 2 Whether the Respondent provided sufficient grounds for non-attendance and failure to respond to the application.
- 3 Whether costs should be imposed as a condition for setting aside the ex parte orders.
Ratio Decidendi
The court found that the Respondent had demonstrated weighty grounds in the supporting affidavit that justified setting aside the ex parte orders. However, the Respondent failed to provide an adequate explanation for its absence and delay in responding to the application. Balancing the interests of justice and the need for parties to be heard, the court allowed the application to set aside the ex parte orders but imposed a condition that the Respondent must pay costs of Kshs. 15,000 to the Claimant before being granted further audience in the dispute.
Court Disposition
Application to set aside ex parte orders allowed with conditions.
Orders
- Ex parte orders issued on 24th July 2017 are set aside.
- Respondent to pay costs of Kshs. 15,000 to the Claimant before being granted further audience.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 474 OF 2017
BETWEEN
KENYA ENGINEERING WORKERS UNION..........CLAIMANT
VERSUS
APEX STEEL LIMITED...........................................RESPONDENT
RULING
1. The Claimant Union filed an Application on 28th June 2017, asking the Court to order the Respondent to remit trade union dues; and to cease victimization of Claimant’s Members on account of their association with the Claimant.
2. The Application, together with the Hearing Notice, is shown to have been received by the Respondent on 6th July 2017.
3. Hearing was scheduled for 24th July 2017. The Respondent did not attend Court for the hearing, and had not by this date, filed any response to the Application.
4. Hearing proceeded, and Orders issued as prayed, ex parte,on 24th July 2017.
5. The Respondent has, through an Application dated 21st August 2017, asked the Court to set aside the ex parte Orders, and allow the Parties to be heard inter partes.
6. The Application is supported by the Affidavit of Respondent’s Group Resource Manager Hezrone Rachilo, sworn on 21st August 2017.
7. Parties were heard on 13th November 2017.
The Court Finds:-
8. There are weighty grounds, with respect to the substance and history of the dispute, shown in the Affidavit of Hezrone Rachilo, to justify setting aside of the ex parte Orders.
9. There is however no adequate explanation why the Respondent failed to attend Court, and respond to the Application filed by the Claimant on 28th June 2017, when required by the Court to do so. Why did the Respondent drag its feet in instructing Counsel?
10. The Court shall allow the Application, with costs of Kshs. 15,000 to be paid by the Respondent to the Claimant, before the Respondent is granted further audience in the dispute. It is so ordered.
Dated and delivered at Mombasa this 15th day of February 2018.
James Rika
Judge