[2024] KEELRC 2329 (KLR)

Nyikuli v Floral Heritage Limited & another (Employment and Labour Relations Cause 1388 of 2016) [2024] KEELRC 2329 (KLR) (26 September 2024) (Ruling)

Neutral citation: [2024] KEELRC 2329 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 1388 of 2016

K Ocharo, J

September 26, 2024

Between

Priscilla Amwoso Nyikuli

Claimant

and

Floral Heritage Limited

1st Respondent

Jatish Shah

2nd Respondent

Ruling

1. One prayer is outstanding on the Respondents/Applicants Notice of Motion Application dated 16th November 2023, for determination by this Court thus; that the Judgement herein dated 19th October 2023 be set aside ex dibito justicie and they be granted leave to defend the suit.

2. The application is premised on the grounds on the face of it, and buttressed by those in the supporting affidavit sworn by the 2nd Respondent/Applicant on 16th November 2023.

3. The application is expressed to be under Section 4(2) of theLimitation of Actions Act Cap 22 of the Laws of Kenya, Order 10 Rule 11 of the Civil Procedure Rules 2010, and Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act Cap 21 of the Laws of Kenya.

4. The Respondents/Applicants state that the claimant/Respondent instituted the suit in July 2016 and neglected to take any step toward setting down the suit for hearing. Consequently, the suit was dismissed on 29th September 2021 for want of prosecution. After the dismissal, the Claimant/ Applicant applied to have the dismissal order set aside. The application was allowed on the 28th of March 2022.

5. The Respondents/Applicants allege that they had instructed the law firm of Paddy Cheloti and Company Advocates to represent them in this matter. Further, on the 22nd of March 2022, the law firm filed a notice of intention to raise a preliminary objection. The application to reinstate the suit was allowed before the preliminary objection was heard.

6. The Respondents assert that on the 16th March 2023, when the matter came up for hearing, they were “ambushed” when they were denied audience on the reason that their Counsel was not on record properly yet they [the law firm] had been on record for more than a year and even though on the 22nd March 2022, the had been given audience. In the circumstances, the matter was allowed to proceed exparte, and the exparte Judgment of 19th October 2023, ensued.

7. The Respondents contend that they were outrightly denied audience in breach of their constitutional rights under Articles 49 and 50 of the Constitution of Kenya, 2010.

8. The Judgment was irregularly obtained. The Respondents/Applicants have a defence with triable issues. They are entitled to an order setting aside the Judgement. The Claimant/ Respondent will not be prejudiced if the orders sought are granted.

9. The Claimant/ Respondent resists the application through her replying affidavit sworn on 18th December 2023. She asserts Counsel for the Respondents/Applicants was not entitled to audience before the Court as he did not have a valid practising certificate. The issue had been raised twice in court, but Counsel didn’t see the necessity of remedying the situation.

10. The Respondents/Applicants’ assertion that they entered an appearance in this matter in 2022, is surprising. Contrary to the allegation the appearance was entered on 30th October 2023, after Judgment had been entered. The effect being that on 27th June 2022, 16th March 2023 and 19th October 2023, they had no standing to participate in the proceedings herein.

11. Denying that the Judgment herein was irregularly obtained, the Claimant/Respondent states that the Respondents/Applicants were given sufficient opportunity to file their documents but failed to do so. Specifically, on 27th June 2022, when the matter came up for hearing, Counsel for the Respondents/Applicants sought leave to file a response to the Claimant’s claim and other documents. The Court allowed the application and granted the Respondents/Applicants 14 days to do so. The matter was adjourned as a result.

12. On 16th March 2023, when the matter next came up for hearing, Counsel for the Respondents/Applicants again sought an adjournment on the grounds that they wished to file a preliminary objection. The Court denied their application for adjournment after noting that they had failed to conform to the Court’s orders of 27th June 2022. The hearing was then allowed to proceed undefended.

13. Finally, the Claimant/Respondent reminds the Court that on the date of delivery of the judgment, namely, 19th October 2023, Counsel for the Respondent was present in court and sought to address the court on an application for a stay of execution. Her Counsel objected, contending that the Counsel for the Respondents/Applicants didn’t deserve the audience of the Court as he didn’t have a practicing certificate. The Court asked both Counsels to appear before it with their practicing certificates but the Applicants’ Counsel protested arguing that he was out of Nairobi. The Court granted a 30-day stay anyway.

14. The Claimant/Respondent argues that the application herein has been filed with inordinate delay, which delay hasn’t been explained.

15. In their further affidavit sworn by Counsel for the Respondents/Applicants on 27th April 2024, Counsel deposed that the failure to take out a practising certificate was not deliberate on his part, but was a result of technical hitches which affected his account with the Law Society of Kenya sometimes in 2022. Due to the hitch, the payment he made for the practicing certificate didn’t reflect on the LSK portal. The issue was eventually resolved by the LSK, on 12th February 2024, when it allowed his application on condition that he pay back fees.

16. Counsel stated that he received instructions to file a preliminary objection on the eve of 27th June 2022 (the hearing date). In his view, the preliminary objection was to fully dispose of the Claimant’s suit. Hence, there was no necessity for filing the statement of defence. On the 16th of March 2023, he informed the Court of the Respondent’s desire to have the preliminary objection filed and argued. The Court declined the application, hence the instant application.

17. Following the directions of this Court issued on 22nd February 2024 that the application be canvassed by way of written submissions, the Respondents/Applicants filed submissions dated 24th May 2024; and the Claimant/Respondent filed submissions dated 7th June 2024.

Analysis and Determination 18. I have considered the application dated 16th November 2024,the supporting affidavit thereof, the Respondents’ replying affidavit, the Respondents’ Counsel’s affidavit, and the respective submissions filed by both parties and the authorities relied on and deduce that the sole issue for determination as follows:a.Whether the Court should set aside the Judgment delivered on 19th October 2023.

Whether the Court should set aside the Judgment delivered on 19th October 2023. 19. A just determination of this issue will not be until a bit of the procedural history is considered, and that I exactly do. On the 27th of June 2022, when this matter came up for hearing, Counsel for the Respondents/Applicants sought for an adjournment, and leave of 14 days to file and serve, their pleadings, witness statement[s] and documents. The Court allowed the adjournment and gave the Respondents/Applicants 14 days to file and serve the stated documents. Further, they were directed to pay Court adjournment fees and the Claimant’s Counsel’s Court attendance fees.

20. When the matter came up finally for hearing on the 16th of March 2013, nine months after the date when the Court gave the above-stated directions, the Counsel for the Respondent informed the Court that the Respondents hadn’t filed their pleadings and the other documents that the Court had directed them to file. He hinted that he would like to file an application to strike out the suit, as in his view, the Claimant wasn’t an employee of his Client.

21. Counsel for the Claimant/Applicant brought it to the attention of this Court that there was neither a notice of appointment filed by the Counsel for the Respondents/Applicants nor a memorandum of appearance filed by the Respondents.

22. This Court expressed its difficulty in understanding the Respondents’ Counsel’s submissions as to why the Court’s order of 27th June 2022 had not been adhered to. It declined to adjourn the matter. It directed that the matter could proceed as a formal proof with Counsel for the Respondent having a right to cross-examine the Claimant subject to him availing to Court, a duly filed and paid for memorandum of appearance, plus a payment receipt. At 11. 40 am when the matter was called out for formal proof, the Respondents/Applicants’ Counsel, Mr. Cheloti was not in Court. The matter proceeded in his absence.

23. The procedural history was vital to the extent that any reasonable and candid Applicant, seeking the exercise of discretion in his or her favour, couldn’t fail to bring forth the same in an application like the instant application. Surprisingly, but deliberately, the Respondents didn’t touch on factual history. In my view, they knew the same was not in support of their application. This was a true lack of candidness on their part.

24. Contrary to what the Respondents assert, as at the time the matter was heard, they had not filed a memorandum of appearance. They sought to deliberately but unsuccessfully mislead the Court.

25. In one of the grounds on the face of the application, the Respondents contend that they had filed a preliminary objection, which ought to have been disposed of first. I have scanned through the documents filed by the Respondents, I see none. Further, I have not lost sight that when the matter came up for hearing on 16th March 2023, Counsel for the Respondent intimated that he was to apply to strike out the suit as he believed the Claimant was not an employee of his client. He never mentioned any preliminary objection. Assuming that there was a preliminary objection based on the argument that the Claimant was not an employee, it is one that the Court couldn’t have wasted time to hear, as it wouldn’t have been a properly taken preliminary objection, on pure points of law.

26. An Applicant who deliberately plays a lack of candidness before a Court of law, will always and must suffer the attendant effect, a deprivation of the intended positive outcome of her or his application or proceedings as the case may be.

27. The Court’s order that directed the matter to proceed for formal proof of the 16th March 2023, has not been challenged in any of those ways known in law. The order has neither been set aside nor reviewed. The order was the foundation of the proceedings and the judgment that culminated thereof. It is difficult to fathom how the judgment can be set aside, without the order being set aside or reviewed first.

28. The Respondents argue that the Judgment in this matter should be set aside ex dibito justitiae. In my view, only an irregular judgment can be set aside ex dibito justitiae. I am of a clear view, that the Judgment herein cannot fit in the description of an irregularly obtained Judgment. Elaborating on the difference between a regularly and an irregularly obtained Judgment, the Court in James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eklr, stated:-“We shall first address the ground of appeal that faults the learned judge for setting aside the default judgment and consequential orders in the circumstances of the case. From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another v Shah (supra), Patel v E.A. Cargo Handling Services Ltd [1975] EA 75, Chemwolo & Another v Kubende [1986] KLR 492 and CMC Holdings v Nzioki [2004] 1 KLR 173).In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo v. Attorney General [1986-1989] EA 456).

29. In sum, I find the Respondents’ application fit for dismissal for the following reasons;I. The application is mis-premised, there is no irregular judgment herein that can attract setting aside of the same in the manner sought by the Applicant or at all.II. The application is anchored on, half-truths, non-disclosure of material facts, and destituteness of candidness, on the part of the Applicants.

30. The application is hereby dismissed with costs to the Claimant/Respondent.

READ, DELIVERED AND SIGNED AT NAIROBI THIS 26TH DAY OF SEPTEMBER 2024OCHARO KEBIRAJUDGEIn the presence of:Ms Mideva for ClaimantMr Balele for Cheloti for Respondent/applicantOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees............................................OCHARO KEBIRAJUDGE