[2018] KEELRC 192 (KLR)
The court found that the respondent's advocate, Mr. Abira, failed to provide any reasonable ground for his absence at the allocated hearing time, which had been set at his own request. The court emphasized that such conduct undermines the overriding objective of timely and fair resolution of cases and contributes to...
Source-derived case information.
- Citation
- [2018] KEELRC 192 (KLR)
- Parties
- Claimant: Stephen Maenya Ogutu; Respondent: The Great Lakes Hotel Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 198 of 2017
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Closure Order
- Outcome
- application dismissed with costs
- Judges
- MN Nduma
- Legal Topics
- Reopening of Case, Cross Examination Rights, Advocate Conduct, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Maenya Ogutu
Claimant
The Great Lakes Hotel Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Closure Order
Legal Issues
- 1 Whether the court should set aside the order deeming the claimant's and respondent's cases as closed before cross-examination and defence evidence.
- 2 Whether the respondent's advocate provided reasonable grounds for failing to attend the hearing.
- 3 Whether the interests of justice require reopening the case.
Ratio Decidendi
The court found that the respondent's advocate, Mr. Abira, failed to provide any reasonable ground for his absence at the allocated hearing time, which had been set at his own request. The court emphasized that such conduct undermines the overriding objective of timely and fair resolution of cases and contributes to backlog. The dictates of justice require that the claimant not be prejudiced by the advocate's untoward conduct. Consequently, the court found no justification to set aside the proceedings or reopen the case and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the order deeming the claimant's and respondent's cases as closed is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 198 OF 2017
(Before Hon. Justice Mathews N. Nduma)
STEPHEN MAENYA OGUTU.................................................................CLAIMANT
VERSUS
THE GREAT LAKES HOTEL LIMITED .......................................RESPONDENT
R U L I N G
1. Application dated 5th July, 2018 seeks to set aside an order of the court deeming the Claimant’s case as closed before the Claimant was cross examined by the Respondent and also deeming the Respondent’s case as closed.
2. The Applicant prays that the case be re-opened and Respondent be allowed to cross examine the Claimant and also present a defence witness.
3. The application is on the grounds that Mr. Abira was in court in the morning on the day of the hearing but was late to come back to court when the matter proceeded at 1. 20 pm.
4. By the time Mr. Abira came back to court, the court had concluded the hearing and risen.
5. The application is opposed vide a replying affidavit of Oliver Owaka Onyango advocate for the Claimant/Respondent stating that both counsels indicated on 5th July, 2018 that they were ready to proceed with the hearing of the suit. That the court allocated the hearing at exactly 1. 30 pm. That Mr. Okwako telephoned Mr. Abira 1t 1. 20 pm and reminded him to be in court at 1. 30 pm. The Applicant’s counsel failed to attend the hearing and the hearing proceeded in the absence of Mr. Abira for the Respondent. The Claimant/Respondent prays that the suit be dismissed with costs.
Determination
6. The conduct by Mr. Abira for the Respondent is what is defeating the overriding objective of courts to hear and determine suits timeously. The court takes judicial notice this kind of conduct is contributing to the building of back log in our courts.
7. Mr. Abira has not advanced any reasonable ground why he failed to turn up for the hearing despite that time had been allocated at his own behest in the morning.
8. The advocate hers responsibility for the happenings of that day and dictates of justice demand that the Claimant be entitled to expedient and fair justice not hindered by untoward conduct by officers of the court.
9. The court finds no reason to set aside the proceedings in this matter. The application is dismissed with costs.
Dated, Delivered and Signed in Kisumu this 20th day ofDecember, 2018
Mathews N. Nduma
Judge
Appearances
Mr. Abira for Respondent/Applicant
Mr. Owaka for Claimant /Respondent
Chrispo – Court Clerk