[2014] KEELRC 582 (KLR)
The court held that since the respondent had died and no formal substitution of parties had been made, the suit could not validly proceed against the respondent or his sons. Service of the hearing notice on the respondent's sons did not make them parties to the suit in the absence of a court order for substitution....
Source-derived case information.
- Citation
- [2014] KEELRC 582 (KLR)
- Parties
- Claimant: Vincent Otiemut; Respondent: Stephen Thuku Mungara
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 144 of 2013
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- Claim dismissed. Each party to bear own costs.
- Judges
- B Ongaya
- Legal Topics
- Termination of Employment, Substitution of Parties, Natural Justice, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Otiemut
Claimant
Stephen Thuku Mungara
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether the suit could proceed against the respondent after his death without formal substitution of parties.
- 2 Whether service of hearing notice on the respondent's sons without substitution was valid.
- 3 Whether granting adverse orders against the deceased respondent would breach rules of natural justice.
Ratio Decidendi
The court held that since the respondent had died and no formal substitution of parties had been made, the suit could not validly proceed against the respondent or his sons. Service of the hearing notice on the respondent's sons did not make them parties to the suit in the absence of a court order for substitution. Granting adverse orders in these circumstances would breach the rules of natural justice, as the persons served were not properly before the court as parties. Accordingly, the memorandum of claim was dismissed, and each party was ordered to bear their own costs.
Court Disposition
Claim dismissed. Each party to bear own costs.
Orders
- The memorandum of claim is dismissed.
- The claimant will bear own costs of the suit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAKURU
CAUSE NO. 144 OF 2013
[Formerly Cause No. 1239 of 2010 at Nairobi]
VINCENT OTIEMUT..............................................CLAIMANT
-VERSUS-
STEPHEN THUKU MUNGARA.........................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 21st March, 2014)
JUDGMENT
The claimant filed the memorandum of claims on 11. 10. 2010 through Gordon Ogola & Associates Limited. The claimant prayed for judgment against the respondent for Kshs.345,058. 00 comprising prayers for payment for one month in lieu of termination notice; underpayments; annual leave for three years; gratuity; rest days and public holidays; costs and certificate of service.
On 25. 03. 2011, the claimant filed an application to substitute the respondent with his sons Terrovin Karanja Thuku and Paul Thuku Mungara on the grounds that the respondent had passed on and it was in the interest of justice that the respondent was substituted. The court record shows that the application was never fixed for hearing and therefore it has not been determined.
On 4. 12. 2013, the claimant filed a notice of change of advocate and appointed Ndeda & Associates to act for him in the place of his initial advocates.
The case was fixed for hearing on 17. 03. 2014. Counsel for the claimant attended court who informed the court that the claimant had served the relevant hearing notice and no response was on record. She further told the court that she did not intent to call any further evidence than as had been filed. She stated that there was no defence on record and she prayed for judgment.
The affidavit of service filed on 14. 03. 2014 shows that the respondent’s sons were served with the hearing notice but without any substitution orders making them parties to the suit. It is obvious that any adverse orders that the court may make in this case against the respondent would be in breach of the rules of natural justice.
In the circumstances, the memorandum of claim is dismissed with orders that the claimant will bear own costs of the suit.
Signed, datedanddeliveredin court atNakuruthisFriday, 21st March, 2014.
BYRAM ONGAYA
JUDGE