Heritage Insurance Company Limited v Joshua & another [2024] KEELRC 1361 (KLR)

Heritage Insurance Company Limited v Joshua & another (Appeal 21 of 2019) [2024] KEELRC 1361 (KLR) (6 June 2024) (Ruling)

Neutral citation: [2024] KEELRC 1361 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Appeal 21 of 2019

M Mbarũ, J

June 6, 2024

Between

The Heritage Insurance Company Limited

Applicant

and

David Fikiri Joshua

1st Respondent

Lion in the Sun Limited

2nd Respondent

Ruling

1. The ruling herein relates to a notice to show cause issued by the court on 13 March 2024 when the matter came up in court for the hearing of the 1st respondent’s application dated 12 October 2023 but they were absent. The court directed the parties to attend court on 10 April 2024, the date fell on a gazette Public Holiday.

2. The court on its motion allocated a mention date for 17 April 2024 and served notices to the parties.

3. On the due date, only the appellant attended. The respondents remained absent.

4. A fresh Notice to Show Cause was issued for 6 May 2024 and the court served the parties.

5. On the due date, 6 May 2024, the respondent's advocate attended. On the Notice to Show Cause why the matter should not be dismissed for non-attendance, the respondents submitted that on the date the matter was in court, he was before another court which on 10 April 2024 fell on a Public Holiday. On 16 March 2024, there was no attendance due to connectivity challenges. He tried calling the registry staff to no avail. He could not recall which court officer/assistant he called for help to log into the court session.This ruling is necessary to document.This is a 2019 matter.The judgment herein was delivered on 4 June 2021.

6. The 1st respondent filed an application dated 12 October 2023 seeking a review of the judgment.

7. The 1st respondent attended at the registrar and was allocated a hearing date for 21st February 2024 but on the due date, there was no attendance. A Notice to Show Cause why the application should not be dismissed for non-attendance was issued for 10 April 2024 which fell on a Public Holiday upon which fresh notice was issued for 17 April 2024 where the 1st respondent remained absent as outlined above.

8. The essence of these mentioned dates and notices so far issued is to secure the 1st respondent’s right to be heard on its application. Upon filing an application dated 12 October 2023 and taking a hearing date, the 1st respondent failed to attend court. The appellant religiously has attended court sessions.

9. The submissions on the Notice to Show Cause by the 1st respondent that non-attendance arose out of a mistake by the advocate is not supported by any evidence or Affidavit as to the circumstances indicated. There is no good cause given as to why there was no court attendance on 21st February or 13 March 2024 as directed.

10. For the court to allow this inaction would result in mention and hearing dates being allocated without attendance. These dates so far allocated are for the sole purpose of hearing the 1st respondent’s application and the non-attendance as outlined if allowed to proceed will result in injustice to the appellant and a waste of court time. Litigation should come to an end.

11. Taking note of the age of the file and the judgment on record, the court will give conditional and one last chance to the 1st respondent.

12. The 1st respondent is hereby given the following directions and conditions;a.Pay court adjournment fees for 13 March 2024, and 16 April 2024 at ksh.10,000;b.Pay the appellant costs for attendance on both dates at (a) above all at Ksh.10,000;c.On the application dated 12 October 2023, secure a hearing date within the next 14 days failure to which, the application stands dismissed as of 24 June 2024;Orders accordingly.

Delivered in open court at Mombasa this 6 day of June 2024. M. MBARŨJUDGEIn the presence of:Court Assistant: Japhet……………………………………………… and ………………………...…………………Page 2 of 2