Eunice Ndunge Musau v Multimedia University of Kenya [2019] KEELRC 1957 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 2491 OF 2017

EUNICE NDUNGE MUSAU                                  CLAIMANT

V

MULTIMEDIA UNIVERSITY OF KENYA    RESPONDENT

RULING

1. On 2 July 2018, the Court directed the Respondent to file and serve its witness statements and documents on or before 27 July 2018. Agreed Issues were to be filed before 3 August 2018.

2. The Respondent did not comply with the order.

On 19 December 2018, the Claimant served a hearing notice upon the Respondent’s advocate on record. The hearing had been 4. When the Cause was called out for hearing on the scheduled date, the Respondent and its advocate on record were absent.

5. The Court, being satisfied that a hearing notice had been served allowed the hearing to proceed and after taking the Claimant’s case reserved judgment to 22 March 2019.

6. On 12 March 2019, the Respondent moved the Court under certificate of urgency seeking orders

1.  …

2.  THAT the Honourable Court be pleased to reserve and/or withhold the judgment scheduled to be delivered on 22nd March, 2019 and any subsequent orders and all proceedings herein pending the hearing and determination of this application.

3. THAT this Honourable Court be pleased to set aside the testimony of the Claimant and the entire proceedings recorded ex-parte on 19th March 2019 or any other day against the Respondent for non-appearance of the Respondent and all other proceedings consequential thereto be set aside.

4. THAT this Honourable Court be pleased to recall the witnesses who testified on 19th February 2019 or any other day for cross examination on the recorded testimony.

5. THAT the Court does order a re-hearing of the suit herein as defended suit on such terms that may be imposed by this Honourable Court.

6. THAT this Honourable Court issues such orders or directions as it deems fit to grant for the ends of justice to be met in this application.

7.  THAT the cost of this application be in the cause.

7. The Claimant filed a replying affidavit in opposition to the application on 19 March 2019, and the Court took arguments on 20 March 2019.

8. The primary reasons advanced in support of the application were that the Respondent’s advocate had misdiarised the hearing date (19 May 2019 instead of 19 March 2019); that the Respondent had a valid, cogent and reasonable defence; that the Respondent had not been able to trace its key witness; that the Claimant would not be prejudiced and that the inadvertent mistake of counsel should not be visited upon the Claimant.

9. In opposition to the application, the Claimant contended that the Respondent had failed to comply with pre-trial directions; that the Respondent had shown a pattern of not attending Court sessions previously; that the Respondent had delayed in filing the application and that the orders sought could not be granted without an application for review and/or setting aside being successfully mounted.

10. The Court has considered all the material placed before it.

11. The Response filed in Court consisted of mere denials save for the assertion that the Claimant was not an employee of the Respondent.

12. Without making any definite finding on the employment relationship, the Court notes that the Claimant had filed and served with the Statement of Claim, secondary evidence from a governmental body, showing existence of an employment relationship with the Respondent.

13. On the merits of the application, it is correct as asserted by the Claimant that the Respondent had demonstrated a pattern of not attending Court. The Respondent did not attend Court for pre-trial on 2 July 2018 and before the registry on 14 December 2018 to fix a hearing date.

14. The Respondent was directed on 2 July 2018 to file witness statements and documents. The order was not complied with.

15. In an attempt to explain the failure, the Respondent contended that its key witness had left employment and therefore it had taken time to locate him.

16. It is instructive that the Respondent did not disclose when the said witness left employment. The disclosure would have been material in order for the Court to determine its bona fides in relation to when the Response was filed, and when pre-trial directions were given.

17. The Court finds the assertion a mere excuse.

18. Further, the Respondent did not demonstrate that it had indeed misdiarised the hearing date. No extract of the diary or copy of any letter sent to the Respondent notifying it that a hearing had been fixed for 19 May 2019 (a Sunday) were produced.

19. The Respondent failed to satisfy the Court to exercise its discretion in its favour, and the Court dismisses the application dated 12 March 2019 with costs to the Claimant.

Delivered, dated and signed in Nairobi on this 26th day of March 2019.

Radido Stephen

Judge

Appearances

For Claimant Mr. Gomba instructed by Charles Gomba & Co. Advocates

For Respondent  Mr. Wachira instructed by J. Thongori & Co. Advocates

Court Assistant  Lindsey