[2013] KEELRC 351 (KLR)
The court found that the Respondent's explanations for non-attendance were unconvincing and unsupported by evidence. The fire in an adjacent building occurred after the relevant hearing date and did not affect the Respondent's ability to attend court or prosecute its case. The court had already considered the...
Source-derived case information.
- Citation
- [2013] KEELRC 351 (KLR)
- Parties
- Claimant: Mary Njeri; Respondent: Education Centre for Women in Democracy
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 358 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Award
- Outcome
- application declined
- Legal Topics
- Setting Aside Award, Employee Wages, Employer Default, Employment Act Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Njeri
Claimant
Education Centre for Women in Democracy
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Award
Legal Issues
- 1 Whether the Respondent has provided sufficient grounds to set aside the Award delivered on 22nd January 2013.
- 2 Whether the reasons advanced by the Respondent for non-attendance at the hearing are credible and justify reopening the case.
- 3 Whether the Respondent has a good defence to the Claimant's claim for withheld salary.
Ratio Decidendi
The court found that the Respondent's explanations for non-attendance were unconvincing and unsupported by evidence. The fire in an adjacent building occurred after the relevant hearing date and did not affect the Respondent's ability to attend court or prosecute its case. The court had already considered the Respondent's grounds of defence and found that the withholding of the Claimant's salary was deliberate and in violation of the Employment Act. There was no credible basis to interfere with the Award, and the application to set it aside was declined.
Court Disposition
application declined
Orders
- The application dated 18th March 2013 is declined.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
Cause 358 of 2009 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
MARY NJERI………………………………............................……………………….. CLAIMANT
VERSUS
EDUCATION CENTRE FOR WOMEN IN DEMOCRACY……………………RESPONDENT
RULING
The Respondent made an application dated 18th March 2013, seeking to have the Award delivered on 22nd January 2013 set aside, and the Respondent allowed to prosecute its case.
The Claimant closed her case on 27th June 2012, more than one year ago. The Respondent was scheduled to bring its witnesses on 27th November 2012. It failed to do so. There was no communication to the Court or to the Claimant’s Advocates. The Court brought proceedings to a close, and gave its Award on 22nd January 2013.
The Respondent’s Advocate explains that the default in attending Court was not deliberate. Secondly, there was a fire in an adjacent building to his Law Firms’ premises, and some of his files were damaged by water used in putting out the fire. Thirdly, he explains that the Respondent has a good defence.
Beginning with this last ground, the Court considered all the grounds raised by the Respondent in its statement of Response, before reaching a finding that the Respondent had deliberately withheld the Claimant’s salary. It was the view of the Court that the Respondent violated the provisions of Sections 17 and 18 of the Employment Act 2007, which make it a criminal offence for an employer to detain the salary of an employee. An employer who is found to be in continuous violation of the wage protection provisions, cannot possibly have a good defence in a claim for payment of the very wages.
There is no credible link between the fire that occurred in a building adjacent to the Respondent’s Advocates’ Chambers, and the failure by the said Advocates to attend Court. It has not been demonstrated the Respondent’s file was destroyed in the fire, or even that the Respondent’s Advocates’ Court Diary was destroyed in the fire, or the water. The fire theory is unconvincing, and is rejected. The date for hearing on 27th November 2012 was taken by an Advocate instructed by the Respondent’s Advocates. The Claimant was absent when the date was taken. The Respondent served the Claimant’s Advocates, who attended on 27th November 2012, when the proceedings were brought to an end. The fire incident took place on 4th January 2013, and is indeed not a relevant factor in the history of this dispute.
The Court finds no reason to warrant interference with the Award on record. The application dated 18th March 2013 is declined, with no order on the costs.
Dated and delivered at Nairobi this 9th day of May 2013
James Rika
Judge
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