[2022] KEELRC 1550 (KLR)
The court found that, based on the correspondence from the respondent to the Deputy Registrar dated 11 June 2020 and copied to the claimant, it was evident that the application dated 5 February 2020 was in the court file at the time the respondent sought directions. The respondent's subsequent claim that the...
Source-derived case information.
- Citation
- [2022] KEELRC 1550 (KLR)
- Parties
- Applicant: Patrick Ikala Shilesi; Respondent: Mjengo Supermart Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 27 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders and Reinstate Motion
- Outcome
- application dismissed with costs in the cause
- Judges
- S Radido
- Legal Topics
- Setting Aside Orders, Dismissal of Application, Court Filing Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Ikala Shilesi
Applicant
Mjengo Supermart Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders and Reinstate Motion
Legal Issues
- 1 Whether the court dismissed an application that had not been properly filed.
- 2 Whether the ex-parte orders of 11 November 2020 should be set aside to allow the respondent to prosecute its application on merit.
- 3 Whether there was interference with the court file regarding the application dated 5 February 2020.
Ratio Decidendi
The court found that, based on the correspondence from the respondent to the Deputy Registrar dated 11 June 2020 and copied to the claimant, it was evident that the application dated 5 February 2020 was in the court file at the time the respondent sought directions. The respondent's subsequent claim that the application had not been filed when it was dismissed was inconsistent with its own prior conduct and correspondence. The court concluded that the assertion that the application was not on file at the time of dismissal was unfounded and possibly a result of interference with the court file by an unknown person. Consequently, the court held that there was no merit in the respondent's...
Court Disposition
application dismissed with costs in the cause
Orders
- The application dated 2 March 2022 is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
Shilesi v Mjengo Supermart Limited (Cause 27 of 2018) [2022] KEELRC 1550 (KLR) (8 August 2022) (Ruling)
Neutral citation: [2022] KEELRC 1550 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause 27 of 2018
S Radido, J
August 8, 2022
Between
Patrick Ikala Shilesi
Claimant
and
Mjengo Supermart Limited
Respondent
Ruling
1. On 11 November 2020, the Court dismissed an application dated 5 February 2020, which had been filed by the Respondent seeking the dismissal of the Cause.
2. The Respondent was aggrieved, and on 3 March 2022, it filed a Motion seeking orders:(1)That this Honourable Court be pleased to set aside the ex-parte orders given by the Court on 11th November 2021, ex debito justitiae, together with all consequential proceedings thereon, and the Respondent be granted unconditional leave to prosecute the Notice of Motion application dated 5th February 2020 on merit.(2)The costs of this application be borne by the Claimant.
3. The main ground advanced by the Respondent in support of the Motion was that when the Court dismissed the application dated 5 February 2020 on 11 November 2020, it had not yet been filed (it was asserted that the Motion had only been filed on 26 February 2021).
4. The Claimant filed a replying affidavit in opposition to the Motion on 30 March 2022, wherein it was deposed that the dismissed application had not been served upon him; that the Respondent had written to the Deputy Registrar on 11 June 2020 seeking that the application dated 5 February 2020 be set for directions before the Court, and therefore it was strange how the instant application found its way into the Court file.
5. The Court directed the parties on 22 March 2022 to file and exchange submissions. The submissions were not on file by the agreed timelines.
6. The Court has considered the Motion, affidavits, and record.
7. The copy of the Motion dated 5 February 2020, currently in the file, has a Court stamp of 26 February 2021.
8. The Respondent wrote to the Deputy Registrar with a copy to the Claimant on 11 June 2020, seeking that the application dated 5 February 2020 be placed before the Court to give directions.
9. It is indeed strange that the Respondent was writing to the Deputy Registrar on 11 June 2020 concerning an application it is now alleging was not in the Court file when it was dismissed (it alleges it filed the Motion in Court on 26 February 2021).
10. It is even stranger to note that the Claimant requested the Respondent for a copy of the application through a letter dated 23 November 2020, requesting to be served with the application.
11. Based on the Respondent’s letter dated 11 June 2020 to the Deputy Registrar and copied to the Claimant, the contention that the Court dismissed an application which had not been filed is stranger than fiction.
12. The (an) application must have been on file, and it is more than probable that some unknown person interfered with the file by removing the Motion.
13. In the circumstances, the Court finds no merit in the application dated 2 March 2022, and it is dismissed with costs in the cause.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 8TH DAY OF JUNE 2022. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor Claimant Ben Aduol Nyanga & Co. AdvocatesFor Respondent Otieno Ragot & Co. AdvocatesCourt Assistant Chrispo Aura