[2019] KEELRC 1367 (KLR)
The court found that the Respondent's application to set aside the judgment was meritless because the Respondent's absence and lack of representation were solely attributable to its own advocates' negligence, not to any unfairness or partiality by the court or the Claimants. All procedural requirements were met: the...
Source-derived case information.
- Citation
- [2019] KEELRC 1367 (KLR)
- Parties
- Claimant: Osielo Okoth O’King; Claimant: Stephen M. Mulinge; Claimant: Harry Randu Banks; Claimant: Juma Waziri Kingi; Respondent: Owners of Motor Vessel Nasibu, Nasibu Fishing Company Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 598 of 2017
- Procedural Posture
- Review Application / Ruling on Application to Set Aside Judgment
- Outcome
- application dismissed with costs
- Judges
- J Rika
- Legal Topics
- Review of Judgment, Right to Fair Hearing, Advocate Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Osielo Okoth O’King
Claimant
Stephen M. Mulinge
Claimant
Harry Randu Banks
Claimant
Juma Waziri Kingi
Claimant
Owners of Motor Vessel Nasibu, Nasibu Fishing Company Ltd
Respondent
Procedural Posture
Review Application / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the judgment delivered on 15th March 2019 should be reviewed or set aside for lack of a fair and/or impartial hearing.
- 2 Whether the Respondent's claim of un-representation due to advocate negligence justifies setting aside the judgment.
Ratio Decidendi
The court found that the Respondent's application to set aside the judgment was meritless because the Respondent's absence and lack of representation were solely attributable to its own advocates' negligence, not to any unfairness or partiality by the court or the Claimants. All procedural requirements were met: the Claimants served all court processes, took procedural directions, and notified the Respondent at every stage. The Respondent and its advocates willfully absented themselves from proceedings. The affidavit in support of the application did not allege any impropriety by the Claimants or the court, but only criticized the Respondent's own legal representation. Therefore, the...
Court Disposition
application dismissed with costs
Orders
- The Respondent's application dated 30th April 2019 is dismissed.
- Costs of the application are awarded to the Claimants.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 598 OF 2017
BETWEEN
OSIELO OKOTH O’KING
STEPHEN M. MULINGE
HARRY RANDU BANKS
JUMA WAZIRI KINGI.................................................CLAIMANTS
VERSUS
A CLAIM IN REM AGAINST THE OWNERS
OF MOTOR VESSEL NASIBU, NASIBU
FISHING COMPANY LTD.........................................RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Wachira Kingangi & Company Advocates for the Claimant
Ahmednasir, Abdikadir & Company Advocates for the Respondent
______________________________________________________
RULING
1. Judgement was delivered in favour of the 4 Claimants, against the Respondent, for a total sum of USD 12,400, costs and interest, on 15th March 2019.
2. The Respondent filed an Application on 30th April 2019, seeking inter alia:
“That this Honourable Court be pleased to review and/or set aside, or vacate the Judgment dated 15th March 2019 by virtue of the same being delivered without a fair and/or impartial hearing”.
3. The Application is supported by the Affidavit of Mumin Ali Munin, Owner of the Motor Vessel Nasibu, sworn on 30th April 2019.
4. Ali depones that Judgment entered on 15th March 2019, “is unfair and unprecedented, and at the same time was secured through un-representation of the Respondent.”
5. Further, he states, “this casual and lazy practice on the part of the Advocates (former) for the Respondent, has caused the Respondent to be deprived of its right to be heard”.
6. The 4th claimant, Juma Waziri Kingi swore an Affidavit in reply, on 9th May 2019. In a capsule, the Claimants position is that the Respondent might have a remedy against its former Advocates but is not entitled to have Judgment set aside on the grounds advanced by Ali.
7. The Application was heard on 10th May 2019.
The Court Finds:-
8. The Affidavit sworn by Mumin Ali Mumin does not support the ground that Judgment was delivered without a “fair and/or impartial hearing.”
9. The Claimants presented their Claim, served all Court Processes, took procedural directions, and notified the Respondent at every turn of Court attendance. The Respondent and its previous Advocates kept away from the Court.
10. The affidavit sworn by Mumin Ali Mumin, does not place any blame on the Claimants or on the Court, but blames its own Advocates for “lazy and casual practice.”
11. How does the Respondent’s Advocates’ laziness and casual practice, amount to lack of fairness and impartiality on the part of the Court?
12. The Application by the Respondent on 30th April 2019 is meritless. It is hereby dismissed with costs to the Claimants.
Dated and delivered at Mombasa this 13th day of June 2019.
James Rika
Judge