Lydia Akinyi v Africa Plantation Capital Limited [2022] KEELRC 406 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOURRELATIONS COURT

AT NAIROBI

CAUSE NUMBER 582 OF 2017

BETWEEN

LYDIA AKINYI ...........................................................CLAIMANT

VERSUS

AFRICA PLANTATION CAPITAL LIMITED....RESPONDENT

RULING

1. An Application dated 23rd October 2019, filed by the Respondent, sought to have the Claim struck out, on the ground that the Verifying Affidavit, was commissioned by an unqualified person.

2. The Application was scheduled for hearing, on 20th November 2019.

3. It was dismissed by the Court, when both Parties failed to attend Court, on the appointed date.

4. The Respondent has filed an Application on 21st November 2019, seeking reinstatement of the Application dated 23rd October 2019.

5. The Counsel for the Respondent explains in his Supporting Affidavit, sworn on 20th November 2019, that he was involved in a High Court Succession Cause on the same date, which took slightly longer than he expected. By the time he arrived at this Court, the Application had been called and dismissed for non-attendance. The Application had not been responded to, at the time of the hearing. The Respondent had filed Submissions in support of its Application.

6. The Claimant does not appear to have filed a Replying Affidavit to the Application for reinstatement. There is an Affidavit showing service.

The Court Finds: -

7. The explanation by the Counsel for the Respondent, that he had another matter at the High Court, and was delayed there before approaching this Court, does not sound persuasive.

8. Counsel with other matters in different Courts at the same time, ordinarily organize for other Counsel to hold their briefs. Courts are reasonable, and upon being asked to wait for Counsel held up in other Courts, always keep the files aside, to allow Counsel to finalize in the other Courts, and attend the next Court.

9. What cannot be countenanced, and what the Court did not countenance on 20th November 2019, is a situation where a scheduled matter is called, and there is no one, to address the Court. How will Courts conduct their business without Parties and their Representatives? The Court would be justified in assuming that the Parties, are not interested in canvassing the matter before it, and in dismissing the matter for non-attendance.

10. Why did not Counsel for the Respondent, arrange for holding of his brief?

11. The Application which was dismissed however, was unopposed. But there was no one to even communicate this to the Court. The Respondent had filed its Submissions, which with a little effort by the Respondent, could have been adopted and obviated the need for oral prosecution. The Application raised serious questions on the validity of the entire Claim.  The allegations that the Verifying Affidavit was commissioned by an unqualified Advocate, and a person who is not a Commissioner for Oaths, are very grave allegations. They cannot be swept under the carpet, on the basis on the Respondent’s Counsel non-attendance. The Application merits a hearing.  The Claimant needs to show that her Claim, is validly before the Court.

IT IS ORDERED: -

a. The Application filed by the Respondent on 21st November 2019, seeking reinstatement of Respondent’s Application dated 23rd October 2019, is allowed.

b. Costs in the cause.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 25TH DAY OF MARCH, 2022

JAMES RIKA

JUDGE