[2015] KEELRC 1327 (KLR)
The court found that the Respondent's failure to attend court and file a replying affidavit was not due to inadvertence but rather inaction. The Respondent was properly served with all relevant documents and orders, and its explanation for non-attendance was unconvincing. The court held that the application to set...
Source-derived case information.
- Citation
- [2015] KEELRC 1327 (KLR)
- Parties
- Applicant: Moses Sammy Ponda; Respondent: Imarika Sacco
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 556 of 2014
- Procedural Posture
- Interlocutory Application / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- application dismissed
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Interim Reinstatement, Ex Parte Orders, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Sammy Ponda
Applicant
Imarika Sacco
Respondent
Procedural Posture
Interlocutory Application / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the Respondent's failure to attend court and file a replying affidavit was due to inadvertence or inaction.
- 2 Whether the ex parte orders for interim reinstatement should be set aside.
- 3 Whether the Respondent's application to set aside the proceedings and orders was justified.
Ratio Decidendi
The court found that the Respondent's failure to attend court and file a replying affidavit was not due to inadvertence but rather inaction. The Respondent was properly served with all relevant documents and orders, and its explanation for non-attendance was unconvincing. The court held that the application to set aside the ex parte orders lacked merit, as the Respondent had not demonstrated a valid reason for its default. Consequently, the orders arising from the proceedings of 14th November 2014, including interim reinstatement, would remain in force.
Court Disposition
application dismissed
Orders
- The application by the Respondent dated 24th November 2014 is rejected.
- The orders arising out of the proceedings of 14th November 2014 shall remain in force.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
CAUSE NUMBER 556 OF 2014
BETWEEN
MOSES SAMMY PONDA ……………………......………………....... CLAIMANT
VERSUS
IMARIKA SACCO …………………………………..……………RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Mr. Mwanyale Advocate instructed by Mwanyale & Kahindi Advocates for the Claimant
Mr. Bwire Advocate instructed by Kithi & Company Advocates for the Respondent
_____________________________________________________________________________
RULING
1. The Claimant filed an application dated 4th November 2014, seeking to be reinstated to his position of the Procurement Officer, pending hearing of the full Claim for unfair termination. The Court declined to issue the Claimant ex parte reinstatement, and directed the application to be served upon the Respondent; the Respondent to file its Reply; and hearing in the presence of both Parties to take place on 14th November 2014.
2. The Respondent filed nothing and did not show up in Court, although served with the application and the procedural orders of 4th November 2014. The Claimant proceeded ex parte.
3. The Court made a ruling dated 9th December 2014, allowing the application dated 4th November 2014. It was pointed out that ordinarily, the Court does not grant orders for interim reinstatement, but in the absence of any affidavit or grounds of opposition from the Employer, such orders can be granted.
4. The Respondent then filed an application dated 24th November 2014, seeking to set aside the proceedings of 14th November 2014 and all the consequential orders. This was alleged by the Respondent to be based on the following reasons:
Failure to attend Court on 14th November 2014 was through the inadvertence of the Respondent’s Advocates;
The Replying Affidavit by the Respondent raises fundamental issues which should go to trial;
The Claimant did not make full disclosure in making his application for interim reinstatement; and
There was no delay in lodging the present application
5. The Parties’ Advocates agreed to have the application considered and disposed of on the strength of the affidavits, pleadings, documents and submissions on record.
6. The Court finds:-
The failure by the Respondent’s Advocates to attend Court on 14th November 2014, or file the Replying Affidavit or Grounds of Opposition, was not through inadvertence; it was inaction rather than inadvertence on the part of the Respondent’s Advocate;
The Memorandum of Appearance is dated 17th November 2014, and filed on 20th November 2014. It is misleading for the Respondent to allege the Memorandum of Appearance was ready for filing on 14th November 2014;
The Respondent was served with the Summons to Enter Appearance, Notice of Motion, and Order dated 6th November 2014, indicating hearing inter parteswould be on 14th November 2014; and
All these facts point to inaction rather than mere inadvertence on the part of the Respondent.
7. It is ordered:-
The application by the Respondent dated 24th November 2014 is rejected.
The orders arising out of the proceedings of 14th November 2014 shall remain in force.
Parties to schedule the main Claim for hearing on an accelerated basis.
Dated and delivered at Mombasa this 13th day of March 2015
James Rika
Judge