[2024] KEELRC 1337 (KLR)

National Union of Water and Sewerage Employees & 4 others v Registrar of Trade Unions & 2 others (Petition 35 of 2021) [2024] KEELRC 1337 (KLR) (5 June 2024) (Ruling)

Neutral citation: [2024] KEELRC 1337 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition 35 of 2021

BOM Manani, J

June 5, 2024

Between

National Union of Water and Sewerage Employees

1st Petitioner

Mary Ndunge Mutuku

2nd Petitioner

Rufus Olefa Osothi

3rd Petitioner

Philemon Otieno Atik

4th Petitioner

Ann Burugu

5th Petitioner

and

The Registrar of Trade Unions

1st Respondent

The Hon. Attorney General

2nd Respondent

Elijah Otieno Awach

3rd Respondent

Ruling

1. The court record shows that on 22nd March 2021, this matter was listed for directions before his Lordship Honourable Justice Nduma Nderi. Neither the Petitioners nor their lawyer attended court. However, the 1st and 3rd Respondents were represented in court.

2. Whilst the 1st Respondent indicated that it had not been served with the pleadings in the cause, the 3rd Respondent indicated that he wished to file a Preliminary Objection to the action. As a result, the trial Judge stood the matter over generally.

3. From that date, the matter remained dormant until 14th November 2022 when the Deputy Registrar of the court issued the parties with a notice to show cause why the suit should not be dismissed for want of prosecution. The notice was addressed to the lawyers for the Petitioners and the Honourable the Attorney General. There is evidence from the court’s online platform that the notice was duly delivered to counsel for the Petitioner and the Honourable the Attorney General.

4. The notice required the parties to attend court on 13th December 2022 to show cause why the matter should not be dismissed for want of prosecution, having remained dormant for a period of more than one year. The record shows that on 13th December 2022, neither of the parties nor their lawyers attended court as required. As a result, the court dismissed the matter for want of prosecution.

5. On 23rd April 2024, the Petitioners moved the court to set aside the orders of 13th December 2022 dismissing the suit for want of prosecution. This application was filed more than one year after the suit had been dismissed for want of prosecution.

6. In the application, the Petitioners and their lawyers made allegations which were outrightly misleading and untrue. For instance, they alleged that when the order to stand over the matter generally was made on 22nd March 2021, neither of the parties was present in court. Yet as the record demonstrates, the Respondents were represented by counsel on that day.

7. The Petitioners contended that the order to dismiss the matter was erroneous as no directions had issued in the cause. Yet, they had not moved the court for such directions for over one year.

8. They contended that the order dismissing the matter was made in their absence as they had not been served. Yet, the court record shows that the notice to show cause was delivered to their lawyer through his last known email address.

9. When the matter came up for mention for directions, the court pointed out to the Petitioners’ advocate that their affidavit in support of the application was premised on falsehoods. Upon this indication, counsel asked for time to verify the facts deponed to in their affidavit.

10. On the next mention date, counsel for the Petitioner confirmed that indeed they had been served with the notice to show cause by the court. However, he now sought to justify his failure to attend court on 13th December 2022 on alleged mix up of two matters in the court’s virtual platform to wit: Petition No. 35 of 2021 and Petition No. 195 of 2020 both of which involve the same parties.

11. Following these allegations, the court took time to examine the virtual platform to verify the correctness of the assertions by the Petitioners and their lawyer. It turned out that the two matters alluded to are distinct and were being handled by different Judicial Officers. It further turned out that notices to show cause were issued in the two causes following failure by the Petitioners and their lawyers to move the cases.

12. Therefore, there was no mix-up in the two cases as alleged by the Petitioners and their lawyer. This again was intended to mislead the court and shift blame for the failure by the Petitioners and their lawyer to attend court on 13th December 2022.

13. The evidence on record demonstrates beyond doubt that the failure by the Petitioner’s lawyers to attend court on 13th December 2022 was without valid cause. They were notified of the date but failed to turn up in court for no apparent reason. Therefore, they must take full responsibility for their failure and stop shifting blame elsewhere. As such the court deprecates the misleading statements in the application under consideration.

14. The foregoing notwithstanding, the court acknowledges the fact that removing a party from the seat of justice should usually be a measure of last resort. I have considered the fact that despite the failures alluded to above, the Petitioners appear keen to have their day in court. This quest has not been objected to by the Respondents.

15. As the record shows, although the Respondents were served with the application, they have not filed responses to it. As such, the application stands unopposed. Consequently, I am minded to reinstate the matter to enable the court determine it on merit.

16. It is apparent that the parties have another pending cause filed as ELRC Cause No. 208 of 2021. This cause involves the same parties and arises from the same cause of action as the instant Petition.

17. The record shows that ELRC Cause No. 208 of 2021 is pending before court number 3 (Hon. Justice Nelson Abhuodha) for hearing and determination. In order to avoid the possibility of conflicting decisions, it is only sensible that the same court handles this Petition. Indeed, this is part of the request by the Petitioners in the instant application.

18. Consequently, I make the following orders:-a.The court order of 13th December 2022 dismissing the instant Petition is hereby set aside and the matter reinstated for hearing and determination on the merits.b.Since the matter is related to ELRC Cause No. 208 of 2021 which is currently before court number 3 (Hon. Justice Nelson Abhuodha), this matter is transferred to that court for possible consolidation and hearing.c.Costs of the application are granted to the Respondents.

DATED, SIGNED AND DELIVERED ON THE 5THDAY OF JUNE, 2024B. O. M. MANANIJUDGEIn the presence of:…………….……. for the Applicants………………for the RespondentsORDERIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M MANANIJUDGE