James Mwaniki Kingori v St Elizabeth Academy [2014] KEELRC 338 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI

CAUSE NO. 1031 OF 2011

JAMES MWANIKI KINGORI ............................. CLAIMANT

VERUS

ST. ELIZABETH ACADEMY ........................... RESPONDENT

Mr. Thangei for Respondent / Applicant

Mr. Mwangi for Claimant / Respondent

RULING

1.       The suit was filed on 29th June 2011 seeking for payment of various terminal benefits and compensation for wrongful termination of employment.

2.       It is common cause that the Respondent was served with the memorandum of claim dated 27th June 2011 and entered appearance in the matter.

However, the Respondent did not file a statement of Response to the claim.

3.       The matter proceeded exparte and Judgment was delivered on 26th February 2014 in favour of the Claimant.

4.      The Respondent / Applicant has brought this application dated 27th February 2014 and amended on 10th March 2014 seeking a temporary stay of execution of the Judgment delivered on the 26th February 2014 and / or set aside the same and meanwhile grant leave to the Respondent herein to file its Reply to the Memorandum of claim out of time.

Reason advanced

5.       The Applicant failed to file a statement of response as it inadvertently submitted all its records, books of accounts and documents to the Kenya Revenue Authority for an independent audit and in the process forgot to file a response to the claim as the file containing the pleadings of this claim was with the Kenya Revenue Authority.

6.      It is apposite to note that the Respondent having been served with summons on 15th May 2012 and entered appearance soon thereafter, was subsequently served with mention notices on 30th April 2012, 16th May 2012, 24th October 2012 and hearing notice on 9th September 2012 and Affidavits of service were duly filed.  The Respondent ignored all those notices and has not explained why it did not appear in Court on any one of those occasions.

7.       In the matter of Shah Vs. Mbogo (1967) EA 116, the Court held that setting aside a Judgment is a discretion of the court, and this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error.  It is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.

8.       Clearly, Mrs Anne W. Wado, the Director of the Respondent / Applicant has not come clean as to the reason why, the Respondent failed to attend Court on 16th May 2012, 24th October 2012 and 4th October 2013 only to rush to Court when the Judgment was delivered.

9.      There is no documentation annexed to the application to show that the Kenya Revenue Authority was in possession of these material documents.  Even if it was in such possession, this does not explain the failure by the Respondent to appear in Court on the various dates stated above.

In the circumstances, the Court declines to exercise its discretion to assist a party who appears to have deliberately avoided to appear in Court.

The application is dismissed with costs.

Dated and delivered at Nairobi this 25th day of July, 2014.

MATHEWS N. NDUMA

PRINCIPAL JUDGE