[2023] KEELRC 3243 (KLR)

Musili v Prideinn Hotels Investments Ltd (Cause E055 of 2021) [2023] KEELRC 3243 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEELRC 3243 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Cause E055 of 2021

AK Nzei, J

December 11, 2023

Between

Philip Muoki Musili

Claimant

and

Prideinn Hotels Investments Ltd

Respondent

Ruling

1. On 2nd June, 2023, this Court delivered a Ruling on the Claimant’s Notice of Motion dated 25th October 2022 and ordered as follows:a.the Claimant is hereby granted leave to amend his Memorandum of claim herein in terms of the draft amended memorandum of claim annexed to the application dated 25th October 2022. b.the amended memorandum of claim shall be filed and served on all the named Respondents within fourteen (14) days of this Ruling.c.the Respondent herein is hereby granted leave to amend its Response to the memorandum of claim within fourteen (14) days of being served with an amended memorandum of claim.d.the Claimant is hereby granted leave to re-open his case.e.costs of the application are awarded to the Respondent, to be agreed upon or taxed.

2. The Claimant did not file, and did not serve an amended Memorandum of Claim within the fourteen (14) days ordered by the Court. The Court’s record shows that on 22nd June 2023, some twenty (20) days from the date of this Court’s said Ruling, the Claimant filed what is shown to be an “amended memorandum of claim, dated 20th June 2023. This he did without seeking the Court’s leave as the fourteen (14) days given to him vide the Ruling delivered on 2nd June 2023 had long lapsed.

3. The Court’s record further shows that on 3rd July 2023, a representative of the Claimant’s Advocates on record herein attended this Court’s Registry and fixed the suit for mention on 24th July 2023, on which date Counsel holding brief for the Claimant’s Advocate on record told the Court that the matter was being mentioned for purposes of fixing a hearing date.

4. On his part, Counsel for the Respondent submitted that although the Claimant had on 2nd June 2023 been given fourteen (14) days to file and serve an amended Memorandum of Claim, the Respondent had only been served on 11th July 2023, which was well outside the fourteen (14) days given. Counsel holding brief for the Claimant’s Counsel did not attempt to offer any explanation for the delay in filing, and did not even seek time to file a formal application for extension of time.

5. On the face of the foregoing, Counsel for the Respondent asked the Court to strike off the said document dated 20th June 2023 and filed on 22nd June 2023. The Court granted the Respondent’s plea by striking off the amended memorandum of claim dated 20th June 2023 and filed on 22nd June 2023, and fixed the suit for defence hearing on 2nd October 2023. On 8th August 2023, however, the Claimant filed a Notice of Motion dated 4th August 2023, seeking the following substantive orders:-a.that this Court be pleased to review and/or vary the Ruling/Orders dated 24th July 2023, in particular that the Claimant’s amended memorandum of claim dated 20th June 2023 and filed on 22nd June 2023 without leave is hereby struck off.b.that costs of the application be in the cause.

6. The foregoing is the application before me, and is shown to be brought under Order 45 of the Civil Procedure Rules, Sections 1A, 1B and 80 of the Civil Procedure Act; and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016. The application is premised on a supporting affidavit of Sylvia Katu Advocate whereby Counsel depones to sickness and hospitalization of her children as being the reason for late filing and service of the Claimant’s amended memorandum of claim.

7. The application is opposed by the Respondent, and both parties filed written submissions on the application pursuant to this Court’s directions in that regard, which I have considered.

8. This Court’s power and jurisdiction to review its Judgment, awards, orders and decrees is circumscribed in Section 16 of the Employment and Labour Relations Court Act and Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules 2016. Rule 33(1) provides as follows:“33. (1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—(a)If there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;(b)on account of some mistake or error apparent on the face of the record;(c)if the judgment or ruling requires clarification; or(d)for any other sufficient reason.”

9. The foregoing is the law governing review of this Court’s decrees or orders. In the present case, the Claimant cites the sickness and hospitalization of his Advocate’s children as the cause of delay in filing and serving an amended Memorandum of Claim as ordered by this Court, and has taken up that fact/averment as a ground for review, referring to it as discovery of a new and important matter or evidence.

10. Sickness and hospitalization of Counsel’s children as deponed in the Claimant’s Advocate’s supporting affidavit sworn on 4th August 2023 cannot be said to amount to:“… discovery of new or important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order was made”

11. Further, it has not been demonstrated that there exists an error that is apparent on the face of the record, that the orders dated 24th July 2023 required clarification, or that there exists some sufficient reason on the basis of which this Court can review its orders dated 27th July 2023. Without belabouring the point, the Claimant’s application does not meet the threshold set by Rule 33(1) of this Court’s Rules.

12. Had the Claimant applied for extension of time to comply with the Court’s Orders dated 2/6/2023, the ground being advanced for review, if proved, would possibly have carried some weight.

13. Further, it ought to be noted that the document dated 20/6/2023 and filed on 22/6/2023, which the Claimant/Applicant wants this Court to revert to by reviewing and or varying its orders dated 24/7/2023, was filed out of time and is therefore an illegality. In the words of the Supreme Court of Kenya in Nicholus Kiptoo Arap Korir Salat -vs- Independent Electoral And Boundaries Commission & 7 Others [2014] eKLR, filing of a document outside the provided time renders the document filed a nullity and of no legal consequence. On 24/7/2023, this court struck off “a document” which was illegally on record, having been filed outside the time ordered by the Court, and without leave. Such a document cannot be resuscitated, even by review orders as sought. It was dead on arrival.

14. In view of the foregoing, orders sought in the Notice of Motion dated 4/8/2023 cannot be granted. The application is hereby dismissed with no order as to costs.

15. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 11TH DECEMBER 2023AGNES KITIKU NZEIJUDGEORDERThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.AGNES KITIKU NZEIJUDGEAppearance:……………………..Claimant……………………Respondent