[2022] KEELRC 13170 (KLR)
The court found that the Respondent had provided a reasonable explanation for the delay in filing his defence, namely, reliance on advocates who were no longer in active practice and could not be traced. The Claimant did not oppose the application, and there was no evidence of prejudice that would be suffered by the...
Source-derived case information.
- Citation
- [2022] KEELRC 13170 (KLR)
- Parties
- Claimant: Kenya Pipeline Company Limited; Respondent: Andrew Mwita
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E559 of 2021
- Procedural Posture
- Employment Cause / Ruling on Application for Leave to File Defence Out of Time
- Outcome
- Application allowed. Leave granted to file defence out of time.
- Judges
- L Ndolo
- Legal Topics
- Extension of Time, Filing of Pleadings, Default Judgment, Right to Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Pipeline Company Limited
Claimant
Andrew Mwita
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Leave to File Defence Out of Time
Legal Issues
- 1 Whether the Respondent should be granted leave to file defence out of time.
- 2 Whether the delay in filing defence was justified.
- 3 Whether granting the application would prejudice the Claimant.
Ratio Decidendi
The court found that the Respondent had provided a reasonable explanation for the delay in filing his defence, namely, reliance on advocates who were no longer in active practice and could not be traced. The Claimant did not oppose the application, and there was no evidence of prejudice that would be suffered by the Claimant if the Respondent was allowed to file his defence out of time. The court exercised its discretion under Rule 13(5) of the Employment and Labour Relations Court (Procedure) Rules to grant the Respondent leave to file his defence out of time, emphasizing the importance of allowing parties to be heard on merit.
Court Disposition
Application allowed. Leave granted to file defence out of time.
Orders
- The Respondent is granted leave to file his defence out of time.
- The defence shall be filed and served upon the Claimant within twenty-one (21) days from the date of this ruling.
Full Case Text
Judgment text and source record
22 paragraphs
Kenya Pipeline Company Limited v Mwita (Cause E559 of 2021) [2022] KEELRC 13170 (KLR) (10 November 2022) (Ruling)
Neutral citation: [2022] KEELRC 13170 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E559 of 2021
L Ndolo, J
November 10, 2022
Between
Kenya Pipeline Company Limited
Claimant
and
Andrew Mwita
Respondent
Ruling
1. The subject of this ruling is the Respondent’s Notice of Motion dated 20th July 2022 seeking leave to file defence out of time.
2. The application is supported by the Respondent’s own affidavit and is premised on the following grounds:a.The Respondent did indeed receive summons to enter appearance;b.The Respondent forwarded the summons to his then Advocates, Leparmarai & Co Advocates;c.The said Advocates assured the Respondent that they had taken over the matter and exhibited to him a notice of appointment;d.The Respondent has tried to get in touch with the said Advocates but is unable to trace them as their former office in View Park Towers remains closed;e.The Respondent has a meritorious defence to the suit;f.Granting of the orders will not in any way prejudice the Claimant.
3. In his affidavit in support of the Motion, the Respondent depones that a search with the Law Society of Kenya confirmed that his former Advocate, Leparmarai Henry Yoni is no longer in active practice.
4. Rule 13(5) of the Employment and Labour Relations Court (Procedure) Rules empowers the Court to extend time for filing of pleadings. The Claimant does not oppose the Respondent’s application and the reason advanced for the delay in filing a defence is reasonable.
5. I therefore grant leave to the Respondent to file his defence out of time. The said defence shall be filed and served upon the Claimant within the next twenty-one (21) days from the date of this ruling.
6. The costs of the Motion will be in the cause.
7. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2022. LINNET NDOLOJUDGEAppearance:No appearance for the ClaimantMr. Thiong’o for the Respondent