[2022] KEELRC 3916 (KLR)
The court found that since the parties had filed a consent allowing the respondent to defend the suit upon payment of Kshs 15,000 as thrown away costs, and there being no objection to the consent, it was proper to adopt the consent as an order of the court. The court exercised its discretion to set aside the ex...
Source-derived case information.
- Citation
- [2022] KEELRC 3916 (KLR)
- Parties
- Applicant: Joshua Oganga; Respondent: Almasi Bottlers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause E004 of 2022
- Procedural Posture
- Employment Cause / Ruling on Motion to Set Aside Ex Parte Proceedings and Allow Defence
- Outcome
- Consent adopted; respondent allowed to defend upon payment of thrown away costs.
- Judges
- S Radido
- Legal Topics
- Unfair Termination, Breach of Contract, Statutory Duty of Care
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Oganga
Applicant
Almasi Bottlers Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Motion to Set Aside Ex Parte Proceedings and Allow Defence
Legal Issues
- 1 Whether the respondent should be allowed to defend the suit after failing to file a response within the prescribed time.
- 2 Whether the consent filed by the parties allowing the respondent to defend upon payment of thrown away costs should be adopted by the court.
Ratio Decidendi
The court found that since the parties had filed a consent allowing the respondent to defend the suit upon payment of Kshs 15,000 as thrown away costs, and there being no objection to the consent, it was proper to adopt the consent as an order of the court. The court exercised its discretion to set aside the ex parte proceedings and allow the respondent to participate in the proceedings, subject to compliance with the agreed terms. The adoption of the consent ensures fairness and upholds the parties' autonomy in resolving interlocutory matters, while also safeguarding the claimant's interests through the award of costs.
Court Disposition
Consent adopted; respondent allowed to defend upon payment of thrown away costs.
Orders
- The consent filed by the parties on July 29, 2022 is adopted as an order of the court.
- The respondent is allowed to defend the suit upon payment of Kshs 15,000 to the claimant's advocate as thrown away costs.
Full Case Text
Judgment text and source record
22 paragraphs
Oganga v Almasi Bottlers Limited (Cause E004 of 2022) [2022] KEELRC 3916 (KLR) (21 September 2022) (Ruling)
Neutral citation: [2022] KEELRC 3916 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause E004 of 2022
S Radido, J
September 21, 2022
Between
Joshua Oganga
Claimant
and
Almasi Bottlers Limited
Respondent
Ruling
1. Joshua Oganga (the claimant) sued Almasi Bottlers Ltd (the respondent) on January 19, 2022, alleging unfair termination of employment, breach of contract and breach of statutory duty of care.
2. The memorandum of claim and notice of summons was served upon the respondent on February 1, 2022, but it did not file a response within the prescribed time, and on March 31, 2022, the court directed that the cause proceeds to formal proof on May 16, 2022.
3. The formal proof proceeded on the scheduled date, and the claimant testified. Despite the service of a hearing notice, the respondent did not attend the formal proof hearing.
4. When the court started preparing this judgment, it found a memorandum of response filed on April 5, 2022 (the response was not in the file during the hearing).
5. On June 20, 2022, the respondent purportedly filed a motion seeking orders to be allowed to defend (it is not on file).
6. The claimant filed grounds of opposition to the motion on July 1, 2022, and on July 29, 2022, the parties filed a consent allowing the motion on condition that the respondent paid the claimant’s advocate Kshs 15,000/- as thrown away costs.
7. The court adopts the consent. Costs in the cause.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 21ST DAY OF SEPTEMBER 2022. Radido Stephen, MCIArbJudgeAppearancesFor Claimant Omondi, Abande & Co. AdvocatesFor Respondent Nyamurongi & Co. AdvocatesCourt Assistant Chrispo Aura