[2015] KEELRC 1081 (KLR)
The court found that the claimant improperly served the hearing notice on the respondent in person despite the respondent's advocates still being on record, contrary to procedural rules requiring service on the advocate. Furthermore, the respondent was not given adequate time to respond to the amended claim, as only...
Source-derived case information.
- Citation
- [2015] KEELRC 1081 (KLR)
- Parties
- Claimant: Stephen Ochieng Ogweno; Respondent: Justice Okech Orinda
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 402 of 2014
- Procedural Posture
- Employment Cause / Interlocutory Ruling on Ex Parte Award Request
- Outcome
- Ex parte hearing and consequential orders set aside; claim stood over generally pending proper service.
- Legal Topics
- Service of Process, Ex Parte Proceedings, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Ochieng Ogweno
Claimant
Justice Okech Orinda
Respondent
Procedural Posture
Employment Cause / Interlocutory Ruling on Ex Parte Award Request
Legal Issues
- 1 Whether service of the hearing notice on the respondent in person was proper given the respondent's advocates were still on record.
- 2 Whether the respondent was afforded adequate opportunity to respond to the amended claim before the hearing proceeded ex parte.
Ratio Decidendi
The court found that the claimant improperly served the hearing notice on the respondent in person despite the respondent's advocates still being on record, contrary to procedural rules requiring service on the advocate. Furthermore, the respondent was not given adequate time to respond to the amended claim, as only seven days had elapsed between the filing of the amended claim and the hearing date. These procedural deficiencies deprived the respondent of a fair opportunity to be heard. Consequently, the court declined to grant the claimant's request for an ex parte award and set aside the ex parte hearing and consequential orders, directing the claimant to effect proper service and take...
Court Disposition
Ex parte hearing and consequential orders set aside; claim stood over generally pending proper service.
Orders
- The ex parte hearing of 2nd March 2015 and consequential orders are set aside.
- The claimant shall effect proper service upon the respondent and take further steps in prosecution of the claim.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
CAUSE NUMBER 402 OF 2014
BETWEEN
STEPHEN OCHIENG OGWENO ..…..........................................….. CLAIMANT
VERSUS
JUSTICE OKECH ORINDA... …....…………………………………..RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Mr. Odhiambo Advocate instructed by Odhiambo S.E & Company Advocate for the Claimant
Mr. Justice Okech Orinda the Respondent - Absent
_________________________________________________________________________________
RULING
The Claimant filed his initial Statement of Claim on 28th August, 2014, subsequently amended, in a Statement of Claim filed on 20th February 2015.
The Respondent filed a Statement of Response on the 27th October 2014.
The hearing was scheduled by the Claimant, in the absence of the Respondent, for 2nd March 2015.
The Respondent did not attend the Court on the hearing date. The Claimant filed an Affidavit of service indicating Hearing Notice was served upon the Respondent in Person on 23rd February 2015. The Claimant went on to give evidence, and has asked the Court to give an ex parte Award.
The Court Finds:-
A review of the record shows the Respondent filed his Statement of Response through the Law Firm Khatib & Company Advocates. It is not clear why the Claimant opted to serve the Hearing Notice on the Respondent in Person. There is nothing removing the Respondent's Advocates from the record.
Secondly, the hearing date was obtained on 29th October 2014. The Claimant took his liberty and filed the Amended Claim on 23rd February 2015. The Respondent was entitled to file a Response to the Amended Claim. By the time of the hearing, only 7 days had elapsed from the date the Amended Claim was filed.
The Court is not able to grant the Claimant his wish for an ex parte Award. Service, it appears, was improper. Adequate opportunity has not been granted to the Respondent to challenge this Claim.
IT IS ORDERED:-
[a] The ex parte hearing of 2nd March 2015 and consequential orders are set aside;
[b] The Claimant shall effect proper service upon the Respondent, and take such further steps in prosecution of the Claim;
[c] For now the Claim is Stood Over Generally.
Dated and delivered at Mombasa this 22nd day of May 2015.
James Rika
Judge