Dorcas Karimi Ndwigah v Deliverance Church Kayole,Robert Thimba & King’s Education Centre [2018] KEELRC 1918 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 887 OF 2013

DORCAS KARIMI NDWIGAH........................................CLAIMANT

- VERSUS -

DELIVERANCE CHURCH KAYOLE.................1ST RESPONDENT

REV. ROBERT THIMBA......................................2ND RESPONDENT

KING’S EDUCATION CENTRE........................3RD RESPONDENT

(Before Hon. Justice Byram Ongaya on Thursday 31st May, 2018)

RULING

The judgment was entered on 27. 07. 2017, by Mbaru J, for the claimant against the respondents jointly and severally as follows:

a) compensation award of Kshs.132,000. 00;

b) notice pay Kshs.66,000. 00;

c) severance pay Kshs.77,000. 00;and

d) underpayments of Kshs.198, 000. 00;

e) The monies due above shall be paid less what has been advanced and acknowledged by the claimant as terminal dues.

f)  The claimant is awarded costs.

0n 21. 08. 2017 the respondents filed an application by way of a notice of motion through Oduor Henry John & Associates. The application was under Order 51 rule 15 and Order 22 rule 22 of the Civil Procedure Rules, 2010, section 3A of the Civil Procedure Act and all enabling provisions of the law. The prayers made were as follows:

a) That this honourable Court be pleased to certify this application as urgent and hence do dispense with the service thereof in the first instance.

b) That this honourable Court be pleased to issue an order of temporary stay of execution of the order issued on 27. 07. 2017 pending the hearing inter-parties of this application or until further orders by the Court.

c) That the orders herein issued on 27. 07. 2017 and all other consequential orders thereto be set aside or discharged and the suit be allowed to proceed on its merits.

d) That the costs of this application be provided for.

The main ground in support of the application was that the respondents’ counsel was not served with the hearing notice and the hearing leading to the judgment of 27. 07. 2017 proceeded ex-parte. Thus, it is urged for the applicant that the judgment of 27. 07. 2017 should be set aside.

As to the manner the hearing date was fixed and the ensuing ex-parte hearing, the Court stated in the judgment as follows:

“1. The claimant filed the memorandum of claim on 11th June, 2013 and the defence was filed on 26th June, 2013. The claimant invited the respondent to take a hearing date but failed to attend and the claimant was allocated the 1st March, 2017. The respondent was served with Hearing Notice and accepted the same on 31st January, 2017 and Affidavit of Service filed on 22nd February, 2017 is evidence of such service. On the due date the respondent did not attend. The claimant was heard in the absence of the respondent.”

The applicant does not seek to review the findings of the Court about the service of a hearing notice and the invitation to fix a hearing date. To reconfirm the Court’s findings, the Court has revisited the record. The claimant’s advocates invited the respondents’ advocates for fixing a hearing date by the letter dated 02. 11. 2016 and duly received by the respondents’ advocates on 02. 11. 2016. The invitation was scheduled for 17. 11. 2016 at 10. 00am. The respondents’ advocates did not attend and the matter was fixed for hearing on 01. 03. 2017.  The hearing notice was served on 31. 01. 2017 and duly received by the respondents’ advocates. The affidavit of service was filed on 22. 02. 2017. The Court confirms the findings in paragraph 1 of the judgment. That being the case, the ground for setting aside the judgment will crumble. While making that finding and declining the application, the Court has reminded itself about the provisions of section 3 of the Employment and Labour Relations Court Act, 2011 that suits before the Court will be determined in a manner that it is just, expeditious and proportionate, and, parties are bound to assist the Court in that regard.

In conclusion, the application filed for the respondents on 21. 08. 2017 and dated 21. 08. 2017 is hereby dismissed with costs.

Signed, datedanddeliveredin court atNairobithisThursday 31st May, 2018.

BYRAM ONGAYA

JUDGE