[2017] KEELRC 812 (KLR)
The court found that the respondent had failed to provide any new or cogent reasons to justify setting aside the decision to close the defence case. The application to reopen the defence was filed more than three months after the closure and after the claimant had already filed final submissions, amounting to...
Source-derived case information.
- Citation
- [2017] KEELRC 812 (KLR)
- Parties
- Claimant: Tom Mabya Luseno; Respondent: Mara West Camp
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 795 of 2010
- Procedural Posture
- Employment Cause / Ruling on Application to Reopen Defence Case After Closure
- Outcome
- application dismissed with costs; matter to proceed to judgment
- Legal Topics
- Adjournment of Hearing, Reopening of Defence Case, Delay in Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Mabya Luseno
Claimant
Mara West Camp
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Reopen Defence Case After Closure
Legal Issues
- 1 Whether the respondent has provided sufficient grounds to set aside the court's decision closing the defence case.
- 2 Whether the delay in filing the application to reopen the defence case is inordinate and unjustified.
- 3 Whether the right to a fair hearing has been compromised by the closure of the defence case.
Ratio Decidendi
The court found that the respondent had failed to provide any new or cogent reasons to justify setting aside the decision to close the defence case. The application to reopen the defence was filed more than three months after the closure and after the claimant had already filed final submissions, amounting to inordinate delay. The court emphasized that the right to a fair hearing applies to both parties and includes the right to have the matter determined expeditiously. The respondent's repeated requests for adjournment, lack of diligence, and failure to act promptly led the court to conclude that the application was without merit. Consequently, the court dismissed the application with...
Court Disposition
application dismissed with costs; matter to proceed to judgment
Orders
- The respondent's application to reopen the defence case is dismissed with costs.
- The matter will proceed to judgment.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 795 OF 2010
TOM MABYA LUSENO.....................CLAIMANT
VERSUS
MARA WEST CAMP..................RESPONDENT
Mr. Nyandieka for respondent/applicant
Mr. Guserwa for claimant/respondent
RULING
1. Justice delayed is justice denied.
2. The claimant closed his case on 26th May 2015 and the defence was not ready to proceed with the defence case on the day. The matter was set down for hearing on 28th October 2015.
3. On 28th October 2015 the respondent sought adjournment on the basis that a witness missed his flight yet the respondent wished to call two witnesses. The matter was set down for hearing on 1st February 2017.
4. On 1st February 2017, the respondent sought adjournment on the basis that counsel for the respondent Mr. Nyandieka had misdiarised the matter. The respondent’s advocate was served on 16th December 2016 having failed to come to take a hearing date.
5. The court fails to understand how the counsel having been served with a hearing notice of 1st February 2017, misdiarised the matter, yet he sent someone else to hold his brief without any explanation as to his whereabouts on the day.
6. The application for adjournment was opposed by Advocate Guserwa for the claimant and the court having considered all the circumstances of the case, refused the adjournment and deemed the defence case closed.
7. This application was filed on 26th May 2017, more than three months from the date the defence case was closed and after the claimant had filed its final submissions. This in the court’s view amounts to inordinate delay.
8. The respondent has not advanced any new and cogent reason why the decision to close the defence case made on 1st February 2017 ought to be set aside by this court.
9. The right to a fair hearing cuts both ways and includes the right of a claimant to have his matter heard and determined expeditiously.
10. The respondent was indolent and this court of equity will not come to its aid.
11. Accordingly, the application is dismissed with costs and matter will proceed to judgment.
Dated and delivered at Nairobi this 4th day of August, 2017
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE