[2013] KEELRC 18 (KLR)
The court found that there was no evidence to discredit the affidavits of service sworn by the process server and counsel for the Claimant. The misdescription of a company officer did not amount to non-service, as employees cannot be expected to know all designations. The Respondent made no effort to challenge the...
Source-derived case information.
- Citation
- [2013] KEELRC 18 (KLR)
- Parties
- Claimant: Victor Omondi; Respondent: House of General Merchant Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 673 of 2012
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Ex Parte Award and Stay Execution
- Outcome
- application dismissed
- Legal Topics
- Service of Process, Ex Parte Award, Setting Aside Award, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Omondi
Claimant
House of General Merchant Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application to Set Aside Ex Parte Award and Stay Execution
Legal Issues
- 1 Whether the Respondent was properly served with summons, notices, and the award.
- 2 Whether the ex parte award should be set aside for lack of service.
- 3 Whether the Respondent is entitled to a stay of execution and leave to respond to the claim.
Ratio Decidendi
The court found that there was no evidence to discredit the affidavits of service sworn by the process server and counsel for the Claimant. The misdescription of a company officer did not amount to non-service, as employees cannot be expected to know all designations. The Respondent made no effort to challenge the affidavits through oral examination. Furthermore, the Respondent had previously failed to participate in conciliation proceedings at the Ministry of Labour, indicating a consistent pattern of non-engagement. The court concluded that there were no grounds to interfere with the ex parte award and dismissed the Respondent's application for stay and setting aside.
Court Disposition
application dismissed
Orders
- The application filed by the Respondent dated 27th May 2013 is dismissed.
- The Claimant may proceed with execution.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 673 OF 2012
BETWEEN
VICTOR OMONDI ………………………………………………….………………….. CLAIMANT
VERSUS
HOUSE OF GENERAL MERCHANT LIMITED……………….……………………… RESPONDENT
Before Rika J
CC. Mr. Kidemi
Mr. Kandere instructed by S.K.Opiyo and Company Advocates for the Claimant
Mr. Omondi instructed by Shah & Shah Advocates for the Respondent
______________________________________________________________________________
RULING
The Court delivered an ex parte Award in favour of the Claimant on 13th February 2013. The Respondent, on learning of execution proceedings commenced against it by the Claimant, filed an application dated 27th May 2013, seeking stay of execution, setting aside of the ex parte Award, and grant of leave to respond to the Claim.
Supported by the affidavit of Dhiru Shah, Director of the Respondent, sworn on 27th May 2013, the application is mainly based on the ground that summons to enter appearance, mention and hearing notices, and the notice of the entry of the Award, were not served on the Respondent.
The Court has reviewed the affidavits sworn by Mr. Aggrey Ochome the Process Server and Mr. Kandere Opiyo learned Counsel for the Claimant.
There is nothing in these affidavits to suggest the Process-Server and Counsel did not swear truthfully. The misdescription of a Director, Manager or other Officer of the company cannot be evidence of non-service. Employees cannot be expected to know all the details and designation of their Employers’ Officers. There was no effort made by the Respondent to question the deponents orally on their affidavits. The Court has observed that even at the stage where the dispute was the subject of non-adjudicatory dispute resolution mechanisms at the Ministry of Labour, the Respondent chose to give that process a wide berth. This is a trade dispute, in which the Industrial Court is entitled to look at the conduct of the parties at the conciliation. The Respondent did not submit to conciliation. The trend continued on adjudication.
There are no grounds shown, why the Court should interfere with the Award on record.
IT IS ORDERED:-
The application filed by the Respondent dated 27th May 2013 is dismissed.
The Claimant may proceed with execution.
Dated and delivered at Nairobi this 20th day of December 2013
James Rika
Judge