Kenya Union of Entertainment and Music Industry Employees & Bomas of Kenya Limited [2021] KEELRC 1037 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT AT NAIROBI

CAUSE NUMBER 1516 OF 2018

BETWEEEN

KENYA UNION OF ENTERTAINMENT AND

MUSIC INDUSTRY EMPLOYEES ………………...……………………………………CLAIMANT

VERSUS

BOMAS OF KENYA LIMITED ………………………………………………………RESPONDENT

RULING

1. The Claimant filed an Application dated 16th September 2020, asking for orders that: Claimant be allowed to proceed ex parte by way of Written Submissions; and, that Summary Judgment is entered for terminal benefits as tabulated by the Claimant, in favour of the Grievant at Kshs. 6,719,740.

2. Ruling was scheduled for 7th October 2021, but has been prepared earlier and Parties notified of its delivery, on the date indicated below.

3. The Application is founded mainly on Ground [a] of the Notice of Motion -  that the Claim is unchallenged, the Respondent having failed to enter Appearance, and to file a Statement of Response.

4. This Ground is not true. The Record shows, a Statement of Response dated 18th March 2019, was filed on the same date. There is a Statement of Witness. There is a List of Documents. If the Statement of Response has not been served upon the Claimant, the Claimant ought to be seeking its service, rather than proceeding on the mistaken view that the Claim is unchallenged. The Respondent has disclosed in its Reply to the Application, that a Statement of Response is on record.

5. The Claimant had filed another Application earlier, asking the Court to order that the Grievant continues to receive his half-monthly salary and allowances, while criminal proceedings against the Grievant, were ongoing. Those proceedings have terminated. The Court ordered on 19th December 2018, that the Application is abandoned, and the Claimant applies its energy on expediting the Cause.

6. The Claimant has opted to file another unnecessary Application. There is a Statement of Response on Record. There is no reason whatsoever, for the Claim to be heard ex parte. There is no justification to enter summary Judgment based solely on a tabulation of terminal dues, done by the Claimant, and on the mistaken view that the Claim is unchallenged.

7. The Claimant should schedule the Claim for pre-trial. If it is the wish of the Claimant that the Claim proceeds under Rule 21 of the E&LRC [Procedure] Rules, 2016, the Claimant ought to seek the concurrence of the Respondent to go that way.

It is ordered: -

a. The Application dated 16th September 2020 filed by the Claimant is rejected.

b. Costs to the Respondent.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES AT NAIROBI, THIS 10TH DAY OF SEPTEMBER 2021.

JAMES RIKA

JUDGE