[2020] KEELRC 1862 (KLR)
The court found that the Claimant had been indolent in prosecuting the applications, particularly by failing to file affidavits of service and serving hearing notices late. However, in the interests of justice and given that the affidavit of service was eventually traced, the court exercised its discretion to allow...
Source-derived case information.
- Citation
- [2020] KEELRC 1862 (KLR)
- Parties
- Applicant: Patrick Kamau Kariru; Respondent: Geofarthom Drilling Co. Ltd; Respondent: Egoskarm (EA) Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1643 of 2012
- Procedural Posture
- Miscellaneous Application / Application for Reinstatement of Dismissed Application
- Outcome
- Application for reinstatement allowed conditionally.
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Application, Service of Process, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kamau Kariru
Applicant
Geofarthom Drilling Co. Ltd
Respondent
Egoskarm (EA) Ltd
Respondent
Procedural Posture
Miscellaneous Application / Application for Reinstatement of Dismissed Application
Legal Issues
- 1 Whether the application for reinstatement of the previously dismissed application should be allowed.
- 2 Whether the Claimant's failure to serve hearing notices and file affidavits of service constitutes sufficient reason to deny reinstatement.
- 3 Whether the interests of justice favour reinstatement despite procedural lapses.
Ratio Decidendi
The court found that the Claimant had been indolent in prosecuting the applications, particularly by failing to file affidavits of service and serving hearing notices late. However, in the interests of justice and given that the affidavit of service was eventually traced, the court exercised its discretion to allow the application for reinstatement. This was done reluctantly and on the strict condition that the Claimant pays the Respondents thrown away costs of Kshs 10,000 within 7 days, failing which the application would stand dismissed without further orders. The court thus balanced the need for procedural compliance with the overarching interest of justice, ensuring that the...
Court Disposition
Application for reinstatement allowed conditionally.
Orders
- The application dated 4 November 2019 is allowed and the application dated 4 February 2019 is reinstated on condition that the Claimant pays the Respondents thrown away costs of Kshs 10,000 within 7 days from the date of the ruling.
- In default of payment within 7 days, the application stands dismissed without further court orders.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1643 OF 2012
PATRICK KAMAU KARIRU .......................................CLAIMANT
v
GEOFARTHOM DRILLING CO. LTD..............1st RESPONDENT
EGOSKARM (EA) LTD......................................2nd RESPONDENT
RULING
1. Judgment was delivered in this Cause on 13 April 2017 wherein the Court awarded the Claimant Kshs 455,000/- for breach of contract.
2. The Claimant then moved to execute the decree, but on 21 March 2018, the Court set aside the execution of the judgment after an objection was raised to the attachment.
3. On 5 February 2019, the Claimant applied to the Court to order the 1st Respondent to produce for inspection its books of accounts, and its directors for an oral examination.
4. When the application came up for hearing on 25 February 2019 it was adjourned because the Claimant had not served it upon the Respondents.
5. The Claimant then caused the application to be fixed for hearing on 2 July 2019.
6. When the application was called for hearing on the scheduled date, the Court dismissed it primarily on two grounds, the absence of the Claimant and lack of an affidavit of service attesting to service upon the Respondents.
7. On 29 August 2019, the Claimant moved the Court seeking the reinstatement of the dismissed application and the grounds relied on were that its advocate was before the High Court and that there was no delay in filing the application.
8. When this application came for hearing on 17 October 2019, the Claimant sought an adjournment and the reason was that the application had not been served.
9. The Court declined to grant the adjournment because there was no explanation of why the application had not been served upon the Respondents.
10. The Claimant then filed the instant application on 5 November 2019 seeking the reinstatement of the application of 29 August 2019.
11. The grounds advanced in support of the application were that the application was not traced in the court file; the affidavit of service had been misplaced but had been traced and that the interest of justice tilted in favour of allowing the application as the Respondents would not be prejudiced.
12. A director of the Respondents filed a replying affidavit in opposition to the application on 22 November 2019 asserting that the Claimant had been indolent; that the Claimant had failed to serve hearing notices previously and that a hearing notice for 17 October 2019 had only been served a day earlier.
13. The Court heard brief oral submissions on 27 November 2019.
14. The Court agrees with the Respondents that the Claimant has been indolent all along. He did not file an affidavit of service in respect of the hearing scheduled for 2 July 2019.
15. Further, the hearing for the application of 29 August 2019 was taken on 29 August 2019. The Claimant only served the hearing notice on 15 October 2019, barely two days to the date of hearing the application.
16. The Court will reluctantly allow the application dated 4 November 2019 and reinstate the application dated 4 February 2019 on condition that the Claimant pays the Respondents thrown away costs of Kshs 10,000/- within 7 days from today, in default the application stands dismissed without any further court orders.
Delivered, dated and signed in Nairobi on this 24th day of January 2020.
Radido Stephen
Judge
Appearances
For Claimant Ms. Wawira instructed by Maina Njuguna & Associates Advocates
For Respondent Mr. Kiptoo instructed by Paul Mugwe & Co. Advocates
Court Assistant Judy Maina