[2020] KEELRC 133 (KLR)
The court found that the respondent failed to explain the one-year delay in bringing the application for review, which constituted inordinate delay and disentitled him to the relief sought. Additionally, the respondent did not provide any evidence to support his claim of partial payment to the claimant prior to...
Source-derived case information.
- Citation
- [2020] KEELRC 133 (KLR)
- Parties
- Claimant: Wiiliam Likuyi Ombonya; Respondent: Abdul Kadir t/a Mohammadi Glass and Hardware
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 325 of 2016
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application dismissed with costs to the claimant
- Judges
- MSA Makhandia
- Legal Topics
- Review of Judgment, Delay in Application, Proof of Payment, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wiiliam Likuyi Ombonya
Claimant
Abdul Kadir t/a Mohammadi Glass and Hardware
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the respondent has established sufficient grounds for review of the judgment delivered on 9 October 2019.
- 2 Whether the respondent's delay in filing the review application is justified.
- 3 Whether the respondent provided proof of partial payment to the claimant prior to judgment.
Ratio Decidendi
The court found that the respondent failed to explain the one-year delay in bringing the application for review, which constituted inordinate delay and disentitled him to the relief sought. Additionally, the respondent did not provide any evidence to support his claim of partial payment to the claimant prior to judgment. The absence of proof and the unexplained delay rendered the application for review without merit. Consequently, the court dismissed the motion with costs to the claimant.
Court Disposition
application dismissed with costs to the claimant
Orders
- The motion dated 22 September 2020 is dismissed with costs to the claimant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 325 OF 2016
WIILIAM LIKUYI OMBONYA..........................................................................CLAIMANT
V
ABDUL KADIR T/A MOHAMMADI GLASS AND HARDWARE............RESPONDENT
RULING
1. The Court delivered Judgment on 9 October 2019 in which the Claimant was awarded Kshs 184,382 together with costs and interest.
2. On 23 September 2020, the Respondent filed a Motion seeking orders
1. THAT this Honourable Court may be pleased to review its Judgment dated 9th October 2019.
2. THAT the costs of this application be provided for.
3. The Claimant filed a replying affidavit in opposition to the Motion on 16 November 2020.
4. When the parties appeared in Court for directions on 24 November 2020, the parties were directed to file and exchange submissions.
5. The Respondent filed his submissions on 27 November 2020 while the Claimant’s submissions were not on record by the agreed timeline of 4 December 2020.
6. The primary ground advanced by the Respondent in seeking a review of the judgment was that in the course of the proceedings he had made some payments to the Claimant which payments were not factored in the Judgment.
7. Opposing the application, the Claimant contended that there was a delay as the Motion had been made 1-year after the Judgment and that the decretal sum had been settled fully.
8. The Court has considered the Motion, affidavits and submissions.
9. The Respondent did not explain why he was moving the Court after 1-year. Without explanation, the Court finds inordinate delay disentitling the Respondent from the order sought.
10. Further, although asserting that partial payment had been made before Judgment and that the same had not been factored, the Respondent did not provide an iota of proof of the payment.
11. The Court finds no merit in the Motion dated 22 September 2020. It is dismissed with costs to the Claimant.
Delivered through Microsoft teams, dated and signed in Kisumu on this 11th day of December 2020.
Radido Stephen
Judge
Appearances
For Claimant M.I. Wafula & Co. Advocates
For Respondent Adiso & Co. Advocates
Court Assistant Chrispo Aura