[2018] KEELRC 2494 (KLR)
The court allowed the Respondents' application for leave to file their defence out of time because the Claimant did not oppose the application, did not file any replying affidavit or grounds of opposition, and the matter had not yet been set down for hearing. The court exercised its discretion in favour of the...
Source-derived case information.
- Citation
- [2018] KEELRC 2494 (KLR)
- Parties
- Applicant: Nocodemus Lukana; Respondent: Cotes Du Rhone Ltd; Respondent: Peter Kibogo
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2245 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Defence Out of Time
- Outcome
- Application allowed. Leave granted to file defence out of time.
- Judges
- MSA Makhandia
- Legal Topics
- Leave to File Defence Out of Time, Default Procedure, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nocodemus Lukana
Applicant
Cotes Du Rhone Ltd
Respondent
Peter Kibogo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Defence Out of Time
Legal Issues
- 1 Whether the Respondents should be granted unconditional leave to file their defence out of time.
- 2 Whether the draft defence annexed should be deemed properly filed and served upon payment of requisite court fees.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court allowed the Respondents' application for leave to file their defence out of time because the Claimant did not oppose the application, did not file any replying affidavit or grounds of opposition, and the matter had not yet been set down for hearing. The court exercised its discretion in favour of the Respondents, finding that no prejudice would be occasioned to the Claimant by allowing the defence to be filed out of time. The court also directed timelines for filing response, witness statements, documents, and agreed issues, with costs in the cause.
Court Disposition
Application allowed. Leave granted to file defence out of time.
Orders
- Response, witness statements and documents to be relied on to be filed and served on or before 30 January 2018.
- Agreed Issues to be filed before 20 February 2018.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 2245 OF 2016
NOCODEMUS LUKANA.............................CLAIMANT
v
COTES DU RHONE LTD...................1st RESPONDENT
PETER KIBOGO...............................2nd RESPONDENT
RULING
1. For determination is an application dated 22 November 2017 by the Respondent seeking
1. ….
2. THAT this Honourable Court be pleased to grant the Respondents unconditional leave to file their defence out of time.
3. THATthe draft defence annexed to this application be deemed properly filed and served upon payment of the requisite Court fees or as the Court may order.
4. THAT the costs of this application be in the cause.
2. Although the application was served upon the Claimant, he did not file any grounds of opposition or replying affidavit to dispute the facts as set forth by the Respondent.
3. The Claimant made two attempts to get an adjournment when the application was called out for hearing.
4. The Court however declined the attempts by the Claimant to secure the adjournment.
5. Considering that the Cause has not been set down for hearing since it was filed, and that the Claimant did not file a replying affidavit or grounds of opposition, the Court will allow the application in the following terms
(i) Response, witness statements and documents to be relied on to be filed and served on or before 30 January 2018
(ii) Agreed Issues to be filed before 20 February 2018.
(iii) Costs in the Cause.
Delivered, dated and signed in Nairobi on this 26th day of January 2018.
Radido Stephen
Judge
Appearances
For Claimant Mr. Jaoko instructed by Mithega & Kariuki Advocates
For Respondent Ms. Nthiga instructed by Muturi Mwangi & Associates
Court Assistant Lindsey