[2021] KEELRC 1037 (KLR)
The court found that the Claimant's application was premised on an incorrect assertion that the Respondent had not filed a Statement of Response. The record clearly showed that the Respondent had filed a Statement of Response, witness statement, and list of documents. The court held that the existence of these...
Source-derived case information.
- Citation
- [2021] KEELRC 1037 (KLR)
- Parties
- Applicant: Kenya Union of Entertainment and Music Industry Employees; Respondent: Bomas of Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1516 of 2018
- Procedural Posture
- Employment Cause / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- J Rika
- Legal Topics
- Summary Judgment, Ex Parte Hearing, Terminal Benefits, Pre Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Entertainment and Music Industry Employees
Applicant
Bomas of Kenya Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Claimant is entitled to proceed ex parte by way of written submissions.
- 2 Whether summary judgment should be entered for terminal benefits as tabulated by the Claimant.
- 3 Whether the Claim is unchallenged due to alleged non-filing of a Statement of Response by the Respondent.
Ratio Decidendi
The court found that the Claimant's application was premised on an incorrect assertion that the Respondent had not filed a Statement of Response. The record clearly showed that the Respondent had filed a Statement of Response, witness statement, and list of documents. The court held that the existence of these pleadings precluded the grant of summary judgment or ex parte proceedings. The appropriate course for the Claimant was to seek service of the Statement of Response if it had not been received, or to schedule the matter for pre-trial. The application for summary judgment and ex parte proceedings was therefore rejected as unnecessary and unjustified.
Court Disposition
application dismissed
Orders
- The Application dated 16th September 2020 filed by the Claimant is rejected.
- Costs to the Respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT NAIROBI
CAUSE NUMBER 1516 OF 2018
BETWEEEN
KENYA UNION OF ENTERTAINMENT AND
MUSIC INDUSTRY EMPLOYEES ………………...……………………………………CLAIMANT
VERSUS
BOMAS OF KENYA LIMITED ………………………………………………………RESPONDENT
RULING
1. The Claimant filed an Application dated 16th September 2020, asking for orders that: Claimant be allowed to proceed ex parte by way of Written Submissions; and, that Summary Judgment is entered for terminal benefits as tabulated by the Claimant, in favour of the Grievant at Kshs. 6,719,740.
2. Ruling was scheduled for 7th October 2021, but has been prepared earlier and Parties notified of its delivery, on the date indicated below.
3. The Application is founded mainly on Ground [a] of the Notice of Motion - that the Claim is unchallenged, the Respondent having failed to enter Appearance, and to file a Statement of Response.
4. This Ground is not true. The Record shows, a Statement of Response dated 18th March 2019, was filed on the same date. There is a Statement of Witness. There is a List of Documents. If the Statement of Response has not been served upon the Claimant, the Claimant ought to be seeking its service, rather than proceeding on the mistaken view that the Claim is unchallenged. The Respondent has disclosed in its Reply to the Application, that a Statement of Response is on record.
5. The Claimant had filed another Application earlier, asking the Court to order that the Grievant continues to receive his half-monthly salary and allowances, while criminal proceedings against the Grievant, were ongoing. Those proceedings have terminated. The Court ordered on 19th December 2018, that the Application is abandoned, and the Claimant applies its energy on expediting the Cause.
6. The Claimant has opted to file another unnecessary Application. There is a Statement of Response on Record. There is no reason whatsoever, for the Claim to be heard ex parte. There is no justification to enter summary Judgment based solely on a tabulation of terminal dues, done by the Claimant, and on the mistaken view that the Claim is unchallenged.
7. The Claimant should schedule the Claim for pre-trial. If it is the wish of the Claimant that the Claim proceeds under Rule 21 of the E&LRC [Procedure] Rules, 2016, the Claimant ought to seek the concurrence of the Respondent to go that way.
It is ordered: -
a. The Application dated 16th September 2020 filed by the Claimant is rejected.
b. Costs to the Respondent.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES AT NAIROBI, THIS 10TH DAY OF SEPTEMBER 2021.
JAMES RIKA
JUDGE