[2014] KEIC 5 (KLR)
The court held that the respondent's failure to file and serve a replying affidavit or statement of grounds of opposition within the required time frame was not merely a procedural lapse but a substantive one. This failure deprived the applicant of the opportunity to respond to any opposition, and the respondent had...
Source-derived case information.
- Citation
- [2014] KEIC 5 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers; Respondent: Leshau Boys High School
- Court
- Industrial Court
- Court Station
- Industrial Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 31 of 2013
- Procedural Posture
- Review Application / Ruling on Preliminary Objection Regarding Opposition to Application
- Outcome
- The application will be determined solely on the basis of the applicant's submissions and documents on record.
- Legal Topics
- Review of Judgment, Filing of Opposing Affidavit, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers
Applicant
Leshau Boys High School
Respondent
Procedural Posture
Review Application / Ruling on Preliminary Objection Regarding Opposition to Application
Legal Issues
- 1 Whether the respondent can oppose the application without filing and serving a replying affidavit or statement of grounds of opposition as required by procedural rules.
- 2 Whether failure to file opposing papers is a substantive or merely procedural defect.
Ratio Decidendi
The court held that the respondent's failure to file and serve a replying affidavit or statement of grounds of opposition within the required time frame was not merely a procedural lapse but a substantive one. This failure deprived the applicant of the opportunity to respond to any opposition, and the respondent had not sought leave to regularize the position. Consequently, the court determined that only the applicant's submissions and documents on record would be considered in determining the application.
Court Disposition
The application will be determined solely on the basis of the applicant's submissions and documents on record.
Orders
- The respondent is barred from making submissions in opposition to the application due to failure to file and serve the required documents.
- Ruling on the application to be delivered on 14.02.2014 at 9:00 am.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 31 OF 2013
[Formerly Cause No. 61 of 2012 at Nairobi]
KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, HOSPITALS &
ALLIED WORKERS............................................CLAIMANT
VERSUS
LESHAU BOYS HIGH SCHOOL.................RESPONDENT
RULING
The Respondent/Applicant filed and served a notice of motion dated 05. 12. 2013 seeking review of the judgment. It is not disputed that the application was served and fixed for hearing on 12. 02. 2014. The learned applicant's counsel, Mr. E. N. Njuguna has made submissions at the hearing as scheduled to urge the application.
At conclusion of his submission, Mr. H. Onwong'a for the Claimant raised to make submissions to oppose the application. At that point, Mr. Njuguna raised an objection that Mr. Onwong'a could not submit to oppose the application because the claimant/respondent did not file and serve any opposing replying affidavit or a preliminary objection or a statement of grounds of opposition as envisaged in Order 51 of the Civil Procedure Rules.
I have considered the objection made for applicant. Like Order 51 of the Civil Procedure Rules, Rule 16(6) of the Industrial Court (Procedure) Rules, 2010 requires a respondent who wishes to oppose an application filed in the court to file and serve on the applicant any affidavit, or a statement of the grounds upon which the respondent will oppose the application. The statement of grounds or replying affidavit will be served, under the rule, within seven days of service of the application.
In the circumstances of this case, I find that the claimant now respondent in this application did not comply with the rules to indicate he was going to oppose the application. Such failure is not merely procedural but also substantive because it denied the applicant a chance to respond to the opposition. The claimant now respondent has not sought leave to file the relevant opposing papers.
In the circumstances, I order that the application will be determined on the basis of submissions made for the applicant and the documents on record. Ruling shall be on 14. 02. 2014 at 9. 00 am.
BYRAM ONGAYA
JUDGE
Dated and delivered at Nakuru this 12th day of February, 2014 in presence of Mr. E. N. Njuguna for the Respondent/Applicant and Mr. H. Onwong'a for Claimant/Respondent.