[2018] KEELRC 770 (KLR)
The court found that the application to set aside the dismissal for non-attendance lacked merit because the underlying application sought to review a judgment on the basis of issues that arose after the judgment, which constituted new causes of action requiring a fresh suit. Additionally, the application had not...
Source-derived case information.
- Citation
- [2018] KEELRC 770 (KLR)
- Parties
- Applicant: Kenya Union of Commercial, Food and Allied Workers; Respondent: Naivas Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 483 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Review of Judgment, Non Attendance, Setting Aside Orders, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Commercial, Food and Allied Workers
Applicant
Naivas Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the court should set aside the dismissal of the applicant's application for non-attendance.
- 2 Whether the application for review of judgment was properly before the court given the new causes of action arose after judgment.
- 3 Whether failure to serve the application justified its dismissal.
Ratio Decidendi
The court found that the application to set aside the dismissal for non-attendance lacked merit because the underlying application sought to review a judgment on the basis of issues that arose after the judgment, which constituted new causes of action requiring a fresh suit. Additionally, the application had not been properly served on the respondent, as evidenced by the absence of an affidavit of service on record. The court concluded that allowing the application would cause confusion regarding the proper cause of action and result in wastage of judicial time. The delay of three years in seeking review further undermined the applicant's position. Consequently, the court dismissed the...
Court Disposition
application dismissed
Orders
- The application dated 12 April 2018 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 483 OF 2013
KENYA UNION OF COMMERCIAL, FOOD
AND ALLIED WORKERS................................CLAIMANT
v
NAIVAS LIMITED....................................... RESPONDENT
RULING
1. For determination is an application dated 12 April 2018 by the Kenya Union of Commercial, Food and Allied Workers (Union) seeking orders
1. …
2. The orders of the Honourable Court issued on 5/4/2018 dismissing the Claimant/Applicant’s application dated 26th March, 2018 for non-attendance be and is hereby set aside.
3. The application be heard on merit on priority and on such date the Honourable Court may fix.
4. …
5. …
2. The reason advanced in support of the application is that the Union’s advocate was late due to traffic and that the failure to attend Court was beyond his control.
3. Just for purposes of record, the application dated 20 February 2018 had sought review of a judgment delivered on 17 July 2015.
4. The Court has considered the application, the affidavit in support thereof, the oral submissions made in Court and keenly perused the record.
5. As Makau Onesmus J noted on 20 February 2018 when certifying the dismissed application urgent, the Cause was a closed matter and the issues sought to be litigated upon raised new causes of action meriting a fresh suit.
6. It is correct that the Issues the Union are seeking to advance through the review application all occurred after the judgment date, and allowing the same to be litigated under this Cause will only lead to confusion as to the proper cause of action and hence wastage of judicial time.
7. This Court raised the same concerns with the Union’s advocate but he insisted that the Court ought to hear the application and give directions.
8. The record also shows the application sought to be revived had not been served as there is no affidavit of service on record. The failure to serve means that the application may have been adjourned or dismissed for failure to serve.
9. It is not lost to the Court that the Union was seeking to review a judgment some 3 years post-delivery.
10. From the record, the Court finds the instant application lacks merit, is frivolous and vexations and orders its dismissal with no order as to costs.
Delivered, dated and signed in Nairobi on this 2nd day of November 2018.
Radido Stephen
Judge
Appearances
For Union Mr. Nyabena instructed by Nyabena Nyakundi & Co. Advocates
For Respondent Thuita Kiiru & Co. Advocates
Court Assistant Lindsey