[2018] KEELRC 1945 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CAUSE NO 657 OF 2016

MWARUA YAWA NZAO & 19 OTHERS...............CLAIMANTS

VS

BABS SECURITY SERVICES LIMITED............RESPONDENT

RULING

1. By Notice of Motion under certificate of urgency dated 30th January 2018 and filed in court on 7th February 2018, the Respondent seeks orders to set aside ex parte judgment entered by my brother Makau J, on 2nd March 2018. The Respondent further seeks unconditional leave to defend the claim.

2. The application is supported by an affidavit sworn by the Respondent’s Director, Samuel Mureithi Ngari and is based on the following grounds:

a) That service on the Respondent was irregular and the Respondent was not aware of the proceedings in this matter leading up to judgment;

b) That the Claimant has taken proceedings prejudicial to the Respondent without inviting the Respondent to participate therein;

c) That the Respondent has a prima facie case with a high probability of success;

d) That the balance of convenience tilts in favour of the Respondent;

e) That the Respondent will suffer great inconvenience if the orders sought are not granted;

f) That the Respondent has a good defence to the Claimant’s claim which raises triable issues;

g) That it is only fair and just that the orders sought be granted.

3. In his supporting affidavit, the Respondent’s Director, Samuel Mureithi Ngari admits that court process was served at the Respondent’s office but was not brought to his attention or that of the other Directors in good time.

4. The Claimants’ response to the application is contained in a replying affidavit sworn by the 1st Claimant, Mwarua Yawa Nzao. He depones that prior to filing the claim, the Claimants’ Advocates had, on 27th June 2016, written a demand letter to the Respondent which was dispatched by registered mail.

5. Nzao further depones that two days after the hearing date, the Claimants’ Advocates received a call from the Respondent inquiring on the progress of the suit. This was followed by a letter dated 10th October 2017 which seemed like a response to the demand letter. The Claimants’ Advocates responded to the said letter on 23rd November 2017 notifying the Respondent that the matter had proceeded by way of formal proof.

6. After this communication, the Claimants’ Advocates did not hear from the Respondent until 9th March 2018 when they were served with the current application. Nzao points out that the application was served one month after filing.

7. By consent of the parties’ Advocates, the application was urged by way of written submissions. The issue for determination is whether the Respondent has made out a case for setting aside of the ex parte judgment entered on 2nd March 2018.

8. As held in the celebrated case of Shah v Mbogo & another [1967] EA 116the discretion of the Court to set aside anex partejudgment is intended to aid a party in cases of an inadvertent or excusable mistake. It cannot be used to obstruct or delay justice.

9. In James Kanyita Nderitu & another v Marios Philotas Ghikas & another[2016] eKLR the Court of Appeal held that in determining whether there exists sufficient cause for setting aside an ex partejudgment, the main concern of the Court should be to do justice to the parties.

10. In the case now before me, the Respondent admits that service was effected at its offices. Further, from the documents placed before the Court, it is evident that the Respondent was aware of the Claimants’ claim right from the time a demand letter was issued up to the time the matter was heard.

11. The Respondent submits that failure to respond to the claim in time was only a procedural lapse. It cannot be. Delay of justice is a substantive issue that the Court must not encourage. In light of this the Court finds no reason to exercise its discretion in favour of the Respondent. The application dated 30th January 2018 is therefore declined with costs to the Claimants.

12. It is so ordered.

DATED SIGNED AND DELIVERED AT MOMBASA THIS 31ST DAY OF MAY 2018

LINNET NDOLO

JUDGE

Appearance:

Miss Osore for the Claimants

Mr. Macharia for the Respondent