[2020] KEELRC 1622 (KLR)
The court found that although the respondent's advocates filed a notice of appointment and a statement of defence and counterclaim, they failed to serve these documents on the claimant. The claimant therefore served the respondent directly with the hearing notice for 25th March 2019, which the respondent did not...
Source-derived case information.
- Citation
- [2020] KEELRC 1622 (KLR)
- Parties
- Claimant: Veronica Omina Musikali; Respondent: Director Yajoka Restaurant Garden
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Cause 53 of 2018
- Procedural Posture
- Review Application / Ruling on Application to Set Aside Ex Parte Judgment and for Stay of Execution
- Outcome
- application dismissed with costs
- Judges
- MN Nduma
- Legal Topics
- Ex Parte Judgment, Setting Aside Judgment, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Veronica Omina Musikali
Claimant
Director Yajoka Restaurant Garden
Respondent
Procedural Posture
Review Application / Ruling on Application to Set Aside Ex Parte Judgment and for Stay of Execution
Legal Issues
- 1 Whether the respondent/applicant was denied a fair hearing due to lack of service of hearing notice and defence documents.
- 2 Whether the ex parte judgment should be set aside and the matter heard afresh.
- 3 Whether the respondent/applicant has provided sufficient justification for non-attendance at the hearing.
Ratio Decidendi
The court found that although the respondent's advocates filed a notice of appointment and a statement of defence and counterclaim, they failed to serve these documents on the claimant. The claimant therefore served the respondent directly with the hearing notice for 25th March 2019, which the respondent did not deny receiving. The respondent and its advocates did not attend the hearing, and no satisfactory explanation was provided for this failure. The court held that the failure to attend court was not attributable to the advocates, and that the respondent/applicant had not justified their absence or failure to serve the claimant. The overriding objective of expeditious disposal of...
Court Disposition
application dismissed with costs
Orders
- The application dated 10th June 2019 is dismissed with costs to the claimant.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT BUNGOMA
CAUSE NO. 53 OF 2018
VERONICA OMINA MUSIKALI.....................................CLAIMANT/RESPONDENT
VERSUS
DIRECTOR YAJOKA RESTAURANT GARDEN........RESPONDENT/APPLICANT
RULING
1. Application dated 10th June 2019 by Swan Advocates prays inter alia for:
(a) Leave for the firm of Swan Advocates to act in place of Bake, Hassan, Hisham and Associates Advocates.
(b) stay of execution of the judgment of the court dated 30th November 2019.
(c) Review and setting aside of the exparte hearing of 25th March 2019 and judgment dated 30th May 2019 and matter be heard afresh.
2. Application is based on grounds set out on the notice of motion and supporting affidavit of Daniel Hadgu a director of the applicant to wit that the applicant filed a defence and counter claim to the suit on 14th January 2019 and served the same upon the claimant/respondent.
3. That Bake, Hassan, Hisham and Associates Advocates were on record representing the Applicant.
4. That the Advocates were never served with a hearing notice nor informed of the hearing of the suit on 25th March 2019.
5. That exparte judgment was entered on 30th May 2019 in favour of the claimant which is about to be executed.
6. That the applicant was ready to defend the suit and prosecute the counter claim.
7. That it is unjust to condemn the Applicant unheard and is a violation of the constitution.
Replying Affidavit
8. The claimant in reply to the application deposes that she was not served with the notice of appointment of advocates and or Appearance. That she was not served with a memorandum of defence. That the claimant served the respondent directly on 25th February 2019 at 2. 30 pm with the hearing notice of 25th March 2019. That the applicant willfully failed to attend the hearing of the suit and only wishes to delay justice.
Determination
9. The court is satisfied that Bake Hassan, Hisham and Associates Advocates filed notice of appointment for the respondents dated 9th January 2019 and also filed a statement of defence and counterclaim on 14th June 2019.
10. The said firm of Advocates however did not serve the claimant/respondent with the notice of appointment and the defence. The claimant therefore continued to serve the respondent directly with the hearing notice of 25th March 2019, which fact the respondent does not deny. The respondent and its Advocates did not attend the hearing of the suit as scheduled on 25th March 2019.
11. Failure by the director of the respondent to attend court is not explained at all. This failure cannot be attributed to the Advocate for the respondent.
12. The overriding objective of the court is to hear and determine suits before it expeditiously. Failure to attend court by a party must be fully explained to justify setting aside of a judgment. The court is not satisfied that the respondent nor its advocates have justified their failure to attend court to defend this suit nor serve the claimant with the statement of defence.
13. The application lacks merit and is dismissed with costs.
Ruling Dated, Signed and delivered this 29TH day of January , 2020
Mathews N. Nduma
Judge
Appearances
Mr. Nyangayu for Respondent/Applicant.
Claimant in person.
Chrispo – Court Assistant