[2018] KEELRC 731 (KLR)
The Court found that the Respondents admitted to not serving a hearing notice on the Petitioners but failed to provide any factual or sufficient explanation for this omission. The absence of such an explanation meant the Court could not exercise its discretion in favour of the Respondents. The right to fair...
Source-derived case information.
- Citation
- [2018] KEELRC 731 (KLR)
- Parties
- Applicant: Noah Kipkemboi Rotich; Applicant: Kennedy Akoko Were; Applicant: David Osodo; Applicant: Henry Lesuper; Respondent: Union of Kenya Civil Servants; Respondent: Tom Odege
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition 87 of 2015
- Procedural Posture
- Constitutional Petition / Ruling on Application to Reinstate Dismissed Application
- Outcome
- application dismissed with costs
- Judges
- MSA Makhandia
- Legal Topics
- Disciplinary Procedure, Right to Fair Administrative Action, Procedural Fairness, Application Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Noah Kipkemboi Rotich
Applicant
Kennedy Akoko Were
Applicant
David Osodo
Applicant
Henry Lesuper
Applicant
Union of Kenya Civil Servants
Respondent
Tom Odege
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Reinstate Dismissed Application
Legal Issues
- 1 Whether the Respondents' failure to serve a hearing notice on the Petitioners justified the dismissal of their application.
- 2 Whether the Respondents provided sufficient explanation for the failure to serve the hearing notice.
- 3 Whether the Court should exercise its discretion to reinstate the dismissed application.
Ratio Decidendi
The Court found that the Respondents admitted to not serving a hearing notice on the Petitioners but failed to provide any factual or sufficient explanation for this omission. The absence of such an explanation meant the Court could not exercise its discretion in favour of the Respondents. The right to fair administrative action and procedural fairness required that the Petitioners be properly served and given an opportunity to respond. As the Respondents did not meet this threshold, their application to reinstate the previously dismissed application was itself dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The Respondents' application filed on 17 May 2018 is dismissed with costs.
- No reinstatement of the dismissed application.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
PETITION NO. 87 OF 2015
IN THE MATTER OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER CHAPTER FOUR, ARTICLE 47 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE LABOUR RELATIONS ACT
AND
IN THE MATTER OF UNION OF KENYA CIVIL SERVANTS
BETWEEN
NOAH KIPKEMBOI ROTICH
KENNEDY AKOKO WERE
DAVID OSODO
HENRY LESUPER......................................................................PETITIONERS
VERSUS
UNION OF KENYA CIVIL SERVANTS.............................1st RESPONDENT
TOM ODEGE......................................................................2nd RESPONDENT
RULING
1. The Petitioners (members of the 1st Respondent’s National Executive Board and Central Governing Council) moved the Court on 14 October 2015 alleging that by summoning them to a disciplinary hearing, the Respondents had violated the constitution of the 1st Respondent and Article 47 of the Constitution of Kenya.
2. In the Petition, two substantive orders were sought, to wit
(a) A declaration that the notice summoning the Petitioners to disciplinary proceedings is deficient, irregular, unfair and unconstitutional and
(b) The notice convening the National Executive Board meeting scheduled for 16th October, 2015 be declare null and void, and of no effect.
3. The Petition was filed together with a motion seeking interim orders interdicting the disciplinary process and on 12 October 2015, an ex parte conservatory order was issued restraining the Respondents from proceeding with the disciplinary process.
4. When the motion came up for inter partes hearing, the Court dismissed it because of the non-attendance of the parties.
5. The Petitioners them moved Court on 24 November 2015 to have the dismissal order vacated and the Court directed that the Respondents be served.
6. On 6 April 2018, the Respondents filed an application seeking that the Petition be dismissed for want of prosecution.
7. When this application came up for inter partes hearing on 17 May 2018, the Respondents advocate informed the Court that application had not been served.
8. Considering the the failure of the Respondent to serve the application and without tendering any sufficient reasons as to the failure, the Court dismissed the application.
9. On the same day, the Respondents filed an application seeking the reinstatement of the application, and the Court heard brief submissions from the parties on 10 July 2018.
10. The Respondents admitted that they did not serve a hearing notice upon the Petitioners and submitted that was an excusable error.
11. However despite the admission, no factual explanation was offered as to why a hearing notice was not served.
12. Without the explanation, the Court is unable to exercise its discretion in favour of the Respondent. The application filed in Court on 17 May 2018 is therefore dismissed with costs.
Delivered, dated and signed in Nairobi on this 2nd day of November 2018.
Radido Stephen
Judge
Appearances
For Petitioners Nyamweya Mamboleo Advocates
For Respondents Maina & Onsare Partners Advocates
Court Assistant Lindsey