[2015] KEELRC 1609 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS

COURT OF KENYA AT NAIROBI

CAUSE NO. 45 OF 2002

KENYA PLANTATION & AGRICULTURAL

WORKERS UNION ……………....…………..…... 1ST CLAIMANT

JOHNSON WANDO THUO ……………….…….. 2ND CLAIMANT

VERSUS

KENYA TEA GROWERS ASSOCIATION …….. 1ST RESPONDENT

NGORONGO TEA FACTORY LIMITED …….. 2ND RESPONDENT

RULING

1. Application dated 9th February 2015 seeks to;

set aside, review, vary and / or discharge in its entirety the orders awarded on 26th April 2013 and 2nd April 2014 in Miscellaneous Application No. 3 of 2013; and

grant the 2nd Respondent leave to file a Replying Affidavit in response to the Claimant’s Notice of Motion Application dated 24th January 2013 and the same application be re-fixed for interparties hearing.

2. At the outset, the Court notes that the orders sought to be reviewed and / or set aside were made more than two (2) years and one (1) year respectively.

There is no explanation why there is such an inordinate delay in bringing the application.

3. The Application is founded on grounds set out on the face of the Notice of Motion to wit;

the orders were obtained through fraud and / or misrepresentation of pertinent material facts;

the orders stand to greatly prejudice the 2nd Respondent;

the orders of 26th April, 2013 were awarded exparte without affording the 2nd Respondent an opportunity to be heard contrary to the rules of natural justice;

the Claimant is currently taking steps to enforce the orders obtained on 2nd April 2014 to the detriment of the 2nd Respondent.

4. The Application is further supported by the Affidavit of George Omuga the General Manager of the 2nd Respondent sworn on 9th February 2015.

5. The deponent states that the 2nd Claimant herein obtained orders on 26th April 2013 making the 2nd Respondent herein as well as himself parties to the already concluded suit being Industrial Cause No. 45 of 2002 between Kenya Plantation & Agriculture workers Union Versus Kenya Tea Growers Association through his notice of motion Application, Misc. Application No. 3 of 2013 dated 24th January 2013 without the Respondent’s knowledge.

6. That the said orders made on 26th April 2013 were granted exparte without the 2nd Respondent being afforded an opportunity to respond to the Application.

7. That the orders further granted leave to the Claimant to personally execute the decree made on 28th November 2003 in the Industrial Cause No. 45 of 2002 against the 2nd Respondent who is a former employer of the Claimant.

8. That the said situation came as a shock to the 2nd Respondent having successfully defended Industrial Cause No. 310 of 2011 Johnson Wando Thuo Versus Ngorongoro Tea Factory Limited which the 2nd Claimant had instituted claiming not to have been paid his rightful dues by the 2nd Respondent but was dismissed by the Honourable Court on 23rd February 2013.

9. That this Notice of Motion by the 2nd Claimant dated 24th January 2013 was not served on the 2nd Respondent hence the impugned exparte orders.

10. That the Claimant has since commenced execution proceedings and sent a firm of Auctioneers who have proclaimed as against the 2nd Respondents assets by notices of attachment dated 2nd April 2014.

11. That it is in the interest of justice that the orders made on 26th April 2013 be set aside entirely and that leave be granted to the 2nd respondent to file its response to the Notice of Motion Application dated 24th January 2013 and the same be re-fixed for interpartes hearing.

12. The 2nd Claimant filed a Replying Affidavit sworn by Gachoka Mwangi advocate on 18th February 2015.

The Application is opposed on the grounds that;

it was brought with undue delay;

the Applicant has made material mis-representations; and

the Application, if allowed would be highly prejudicial to 2nd Claimant.

13. Furthermore, the Respondent states that the Application for joinder was filed on 25th January 2013 and same was served on the Applicant on 12th March 2013 with a clear indication that it was due for hearing on 15th March 2013.

14. An Affidavit of Service sworn by one Martin Mwaniki on 14th March 2013 is attached and marked ‘GMI’.

15. Matter did not proceed on 15th March 2013 and was set for hearing on 26th April 2013 and hearing notice was served and an Affidavit of service sworn by Martin Mwaniki on 25th April 2013 is attached and marked “GM2”.

16. On 26th April 2014, all other parties failed to appear and Marete, J. issued the prayers sought.

17. That the decree was drawn and served on all the parties but it was difficult to execute since same did not reflect sums payable to the 2nd Claimant

18. On 31st October 2013, the 2nd Application dated 31st October 2013 seeking the Court to specifically state the amount payable to the 2nd Claimant was filed.

19. The Application was served on the 2nd Respondent on 13th November 2013 with a hearing date on 20th November 2013. An Affidavit of service sworn on 19th November 2013 by Martin Mwaniki is annexed and marked “GM3’.

Matter did not proceed on 20th November 2013 and was reset for hearing on 18th December 2013.

20. On 25th November 2013, the Advocates for the Applicant wrote to the Respondent seeking further details on the case. The Applicant had not asked why they were a party to the suit up until then.

21. Kimani and Michuki Advocates filed a notice of appointment on 18th December 2013 and matter was adjourned and a new date was fixed for 25th March 2014. Hearing notice was served by Martin Mwaniki who has sworn an Affidavit of Service on 24/3/2014 marked ‘GM6’.

22. The Applicants did not attend the hearing on 25th March 2014 and Court ordered they be served again for on 2nd April 2014.

23. On 2nd April 2014, the Applicants were represented by Mulanya Advocate. Upon hearing the matter, Marete J. made orders in favour of the Respondent. It is misleading therefore for the Respondent to allege that the orders were granted exparte.

24. That the Respondent wrote a letter to the Applicants advocate seeking payment of the decretal sum but no payment was made.

Taxation of the bill was done on 21st April 2014.

25. It is the Respondent’s submission that this Application has been brought two (2) years down the line and it is far-fetched for the Applicant to say, it was caught unawares.

26. The Respondent was as a union member entitled to salary increment back on 28th November 2007 and was not awarded the increments for twelve (12) years hence the joinder and subsequent orders.

27. Determination

The Court is satisfied that the Applicant was properly served with the Applications that culminated in the Ruling and decree of the Court in favour of the Respondent.

28. The Court has perused the various Affidavits of service sworn by Mr. Mwaniki and is satisfied that service was proper.

29. The Applicant did not call for the cross examination of the process server if it had doubts on the authenticity of the service made.

30. Accordingly, the Application has no merits and the same is dismissed with costs to the 2nd Claimant / Respondent.

Dated and Delivered at Nairobi this 29th day of May, 2015.

MATHEWS NDERI NDUMA

PRINCIPAL JUDGE