[2022] KEELRC 323 (KLR)
The court found that the applicant failed to provide compelling grounds to justify the review of its previous orders or the reopening of the matter seven years after judgment. The respondent demonstrated that due diligence was exercised in sending the letter of dismissal to the applicant's last known address, which...
Source-derived case information.
- Citation
- [2022] KEELRC 323 (KLR)
- Parties
- Applicant: Simon Gikungu Kariuki; Respondent: The Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 32 of 2013
- Procedural Posture
- Review Application / Ruling on Application for Review of Previous Orders
- Outcome
- application dismissed
- Judges
- DKN Marete
- Legal Topics
- Judicial Review, Reinstatement After Dismissal, Gross Misconduct, Public Service Employment, Court Orders Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Gikungu Kariuki
Applicant
The Attorney General
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Previous Orders
Legal Issues
- 1 Whether the court should review its previous orders made in 2019 pursuant to the application dated 1st April, 2019.
- 2 Whether the applicant has provided sufficient grounds to warrant a review and reopening of the matter seven years after judgment.
- 3 Whether the failure of the Public Service Commission to act on the court's orders and the issue of undelivered correspondence justify the relief sought.
Ratio Decidendi
The court found that the applicant failed to provide compelling grounds to justify the review of its previous orders or the reopening of the matter seven years after judgment. The respondent demonstrated that due diligence was exercised in sending the letter of dismissal to the applicant's last known address, which was provided by the applicant himself. The court held that the applicant bore the responsibility to update his contact information and that the explanation regarding the undelivered letter was unconvincing. Furthermore, the court emphasized that reinstatement after dismissal for gross misconduct would be contrary to public interest. Consequently, the application was dismissed...
Court Disposition
application dismissed
Orders
- The application dated 28th April, 2021 is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
CAUSE NO.32 OF 2013
(Before D.K.N.Marete)
SIMON GIKUNGU KARIUKI..............................................CLAIMANT/APPLICANT
VERSUS
THE ATTORNEY GENERAL..................................................................RESPONDENT
R U L I N G
This is an application dated 28th April, 2021 and comes out thus;
1. That the court do review the orders made on the …………..day of ………..2019 pursuant to the Application dated 1st April, 2019.
2. That upon reviewing the Orders the court do here the application dated 12th April, 2018.
3. That costs abide the outcome of the Application dated 12th April, 2018.
It is grounded as follows;
a)The Public Service Commission failed to act contrary to the Orders issued by the Judge on 31st July, 2015.
b)The letter sent was never received.
The Respondent in a Replying Affidavit sworn on 19th July 2021 denies and rubbishes the application.
It is the Respondent’s case that this is an application for review based on the ground that all this time, the Public Service Commission failed to act on this court’s orders issued on 31st July, 2015 in that the letter sent never reached the applicant.
The Respondents further case is that the commission become aware of the judgment in July, 2018 and immediately requested for the applicants personal file which was received on 17th July, 2018, seven days down the line.
Her further case is as follows;
· The personal file as forwarded did not contain the explanation required and she called for the confidential file which was received on 16th January, 2019.
· The letter of dismissal to the applicant was forwarded through the postal address on the confidential file but ended up being returned as undelivered.
· That this was the address forwarded by the applicant who had the duty of updating the same at all times.
· Due diligence was observed in the sending of the letter.
· Hearing the application dated 12th April, 2018 would be an exercise in futility the matter having been determined and the applicant found culpable and who failed to make the necessary disclosures hence the dismissal for gross misconduct.
· That seeking reinstatement after gross misconduct would lead to go contrary to public interest.
· That this application is vexatious and a drawback to expeditious administration of justice through prolonging and endless pursuit of frivolous matters.
· It should be disregarded.
· It is not meritorious and is an abuse of the process of court, and indeed frivolous.
This application tilts in favour of the Respondent’s case, she has ably explained and submitted on a diligent cause of action in the making and delivery of the letter of dismissal of the applicant.
The application to re-open a matter seven years down judgment would require very compelling grounds on the part of the applicant. This is not the case herein. The applicant has nothing outstanding in support of the application. This is more so bearing the delicate nature, intent and import of the application. The submission of the letter as undelivered is not convincing. It is indeed suspect.
Let this matter die, or do I say rest.
I am therefore inclined to dismiss the application with orders that each party bears their costs of the same.
DATED AND DELIVERED AT NYERI THIS 23RD DAY OF MARCH, 2022.
D.K.NJAGI MARETE
JUDGE
Appearances
1. Applicant in person.
2. Mr.Muthuri instructed by State Law Office for the Respondent.