[2021] KEELRC 85 (KLR)
The court found that the ex-parte applicant failed to provide a satisfactory explanation for his absence on 3 May 2021, as the only reason advanced was the advocate's difficulty logging into the virtual court, which was not substantiated. Furthermore, the court held that the applicant's underlying claim related to...
Source-derived case information.
- Citation
- [2021] KEELRC 85 (KLR)
- Parties
- Applicant: Republic; Applicant: Wilson Sabwami; Respondent: The Principal/Secretary, Board of Management, St Patricks Naitiri High School; Respondent: Chairman, Board of Management, St Patricks Naitiri Boys Highschool; Interested Party: St Patricks Naitiri Boys Highschool
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E001 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Restore Dismissed Summons
- Outcome
- motion dismissed with costs
- Legal Topics
- Unfair Termination, Breach of Contract, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Wilson Sabwami
Applicant
The Principal/Secretary, Board of Management, St Patricks Naitiri High School
Respondent
Chairman, Board of Management, St Patricks Naitiri Boys Highschool
Respondent
St Patricks Naitiri Boys Highschool
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Motion to Restore Dismissed Summons
Legal Issues
- 1 Whether the ex-parte applicant has provided sufficient explanation for failure to attend court on 3 May 2021.
- 2 Whether the dismissed summons should be restored to allow judicial review proceedings.
- 3 Whether judicial review is the proper procedure for claims of breach of contract and unfair termination of employment.
Ratio Decidendi
The court found that the ex-parte applicant failed to provide a satisfactory explanation for his absence on 3 May 2021, as the only reason advanced was the advocate's difficulty logging into the virtual court, which was not substantiated. Furthermore, the court held that the applicant's underlying claim related to breach of contract and unfair termination of employment, which should be pursued through a Memorandum or Statement of Claim as required by the Employment and Labour Relations Court (Procedure) Rules, not by judicial review. Restoring the dismissed summons would be futile since the threshold for granting leave to commence judicial review proceedings was not met. Accordingly, the...
Court Disposition
motion dismissed with costs
Orders
- The motion to restore the dismissed summons is dismissed with costs.
Full Case Text
Judgment text and source record
39 paragraphs
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT BUNGOMA
MISC APPLICATION NO. E001 OF 2021
IN THE MATTER OF AN APPLICATION FOR LEAVE OF JUDICIAL REVIEW FOR ORDERS OF CERTIIRARI AND MANDAMUS
REPUBLIC...........................................................................................................APPLICANT
AND
WILSON SABWAMI..........................................................................................APPLICANT
v
THE PRINCIPAL/SECRETARY, BOARD
OF MANAGEMENT, ST PATRICKS NAITIRI HIGH SCHOOL......1st RESPONDENT
CHAIRMAN, BOARD OF MANAGEMENT
ST PATRICKS NAITIRI BOYS HIGHSCHOOL..............................2nd RESPONDENT
AND
ST PATRICKS NAITIRI BOYS HIGHSCHOOL........................INTERESTED PARTY
RULING
1. Wilson Sabwami (ex-parte applicant) filed a Chamber Summons on 4 March 2021 seeking leave to commence judicial review proceedings against the Board of Management, St Patricks Naitiri. Boys High School.
2. The Court directed him to serve the Summons ahead of directions on 3 May 2021.
3. When the application was called out on 3 May 2021, the ex-parte applicant was absent. There was no evidence that he had served the Summons.
4. The Court directed that a Notice to Show Cause be issued with a return date of 3 June 2021.
5. On the return date, the ex-parte applicant was absent again.
6. The advocate for the Respondent applied that the Summons be dismissed and the Court dismissed it.
7. On 9 June 2021, the ex-parte applicant filed a Motion seeking an order restoring the dismissed Summons on the ground that the advocate on record had challenges logging into the virtual Court.
8. The Court directed the ex-parte applicant to serve the Motion and when parties appeared on 17 June 2021, the Court directed that responses and affidavits be exchanged.
9. The Respondent filed Grounds of Opposition on a date which is not clear from the record and the ex-parte applicant filed submissions on 16 August 2021.
10. The Court has considered the Motion, Grounds of Opposition and submissions and come to the view that the Motion should be dismissed.
11. First, the ex-parte applicant has not explained the failure to attend the Court on 3 May 2021.
12. Second, the ex-parte applicant was employed as a bursar by the Respondent in 2001. He was suspended on half salary in 2014 and in 2020, the half salary was withdrawn.
13. According to the ex-parte applicant, the withdrawal of the half salary amounted to dismissal.
14. In the Court’s view, the anchor to the ex-parte applicant’s action is breach of contract and unfair termination of employment.
15. In terms pf practice and procedure, and the Rules of this Court, the mode of approaching the Court is through a Memorandum of Claim or Statement of Claim and not through judicial review proceedings.
16. Restoring the dismissed Summons would be an exercise in futility as it is not probable that the threshold for grant of leave to commence judicial review proceedings would be met.
17. The Motion is dismissed with costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 15TH DAY OF DECEMBER 2021.
Radido Stephen, MCIArb
Judge
Appearances
For ex-parte applicant A.W. Kitiyu & Co. Advocates
For Respondents Office of the Attorney General
Court Assistant Chrispo Aura