[2018] KEELRC 2440 (KLR)
The court found that the applicant failed to demonstrate sufficient cause for the non-attendance of his advocate at the hearing of the transfer application. The advocate scheduled the hearing date without consulting the respondent's advocate and was aware of conflicting obligations in other courts. No affidavit was...
Source-derived case information.
- Citation
- [2018] KEELRC 2440 (KLR)
- Parties
- Applicant: Wycliff Mwangaza Kihungwa; Respondent: Grain Bulk Handlers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 6 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Revive Dismissed Transfer Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- J Rika
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Res Judicata, Revival of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wycliff Mwangaza Kihungwa
Applicant
Grain Bulk Handlers Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Revive Dismissed Transfer Application
Legal Issues
- 1 Whether the applicant has shown sufficient cause to justify revival of the dismissed application for transfer of suit.
- 2 Whether the application is res judicata in light of a similar application previously rejected by the High Court.
- 3 Whether the applicant's advocate's explanation for non-attendance constitutes sufficient reason for setting aside the dismissal.
Ratio Decidendi
The court found that the applicant failed to demonstrate sufficient cause for the non-attendance of his advocate at the hearing of the transfer application. The advocate scheduled the hearing date without consulting the respondent's advocate and was aware of conflicting obligations in other courts. No affidavit was provided by the colleague allegedly entrusted with holding brief, nor was the colleague named. Furthermore, the court held that the application was res judicata, as a similar application for transfer had previously been made and rejected by the High Court. Reviving the application would therefore serve no useful purpose. The application to revive the dismissed transfer...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 27th July 2016 is rejected.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
MISCELLANEOUS APPLICATION NUMBER 6 OF 2014
BETWEEN
WYCLIFF MWANGAZA KIHUNGWA.........APPLICANT
VERSUS
GRAIN BULK HANDLERS LIMITED......RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
J.J. Chesaro & Company Advocates for the Applicant
Oloo & Chatur Advocates for the Respondent
RULING
1. The Applicant filed this Miscellaneous Application on 10th April 2014. He seeks to have Mombasa CMCC Number 3392 of 2010, which he filed against his former Employer, the Respondent herein, transferred to the Industrial Court [Employment & Labour Relations Court], for trial and determination. The Claim before the Chief Magistrates Court is about terminal benefits and damages for wrongful dismissal. The Applicant argues that the Chief Magistrate’s Court does not have jurisdiction to hear and determine the Claim.
2. The Advocate for the Applicant scheduled the hearing date in the absence of the Respondent’s Advocate. Hearing fixed for 24th June 2016. The Applicant’s Advocate did not attend Court for hearing. Respondent’s Advocate attended Court, and prayed for dismissal of the Application for non-attendance. The order dismissing the Application was granted with costs to the Respondent.
3. Through an Application dated 27th July 2016, the Applicant seeks to revive his Miscellaneous Application. The Application is supported by the Affidavit of the Advocate for the Applicant, Mr. Michael Oduor, sworn on 26th July 2016.
4. The Advocate explains that he was on the hearing date, involved in another matter at the Voi High Court. He made arrangement to have a Colleague hold his brief at the hearing before the Employment and Labour Relations Court, on 24th June 2017. The Advocate entrusted Applicant’s Advocate’s brief, had stepped out of the Court when the Application was called out. Upon return he found the Application already dismissed.
5. Parties agreed to have the Application considered and determined through Written Submissions. They confirmed filing of Submissions when the matter was last mentioned in Court on 17th November 2017. The Respondent’s position is that the Applicant had made a similar Application before the High Court for transfer of the Claim from the Chief Magistrate’s Court, to the Employment and Labour Relations Court, vide High Court at Mombasa Miscellaneous Application Number 159 of 2013. The High Court rejected the Application.
The Court Finds:-
6. The Applicant has not shown sufficient reasons to justify revival of his Application for transfer of the Claim from the Chief Magistrate’s Court.
7. His Advocate took the hearing date in the absence of the Respondent’s Advocate. The Applicant’s Advocate was aware he had other obligations before other Courts, on the date he scheduled the Application for hearing. He prioritized other obligations.
8. The Advocate said to have been entrusted brief, is not named, and there is no Affidavit sworn by the said Advocate, confirming he was entrusted brief, and explaining why he was absent when the matter was called out.
9. The Application sought to be revived appears to the Court to be res judicata, a similar Application having been presented, and rejected at the High Court Mombasa. It would not be useful to revive an Application, which on the face of it, looks unsustainable. The Application dated 27th July 2016 is rejected with costs to the Respondent.
Dated and delivered at Mombasa this 15th day of February 2018.
James Rika
Judge