Maurine Achieng v Satish K. Shah [2014] KEELRC 779 (KLR)

IN THE INDUSTIRAL COURT OF KENYA AT KISUMU

(previously Nai No. 1099/2011)

VERSUS

The respondent applicants herein filed an Application dated 27. 6.13.  They seek leave of Court to file a defence and to have the Judgment delivered on 22. 2.13 set aside.  It is the respondents case that their counsel did not file a defence on their behalf nor were they informed of the hearing of this case.  The respondents further contend that they have a good defence which they would like to be considered and urge court not to condemn them unheard.  In their Affidavit, sworn by Jaideep Shah on  23. 6.2013, the respondents aver that they were served with Summons to Enter Appearance and instructed  Gumbo & Associates to act for them.  They never received any correspondence on  the matter from Court as per their  counsel until they received a copy of the Judgment  herein.

The claimant respondents, opposed this Application.The claimant filed her Replying Affidavit sworn on 23. 9.2013.  It is her contention that the Application lacks merit and is intended to delay this case further. The claimant aware that what is being sought by the respondent was well addressed in Paragraph No.4 of the Court Judgment that the respondent was granted time and ordered to file their response on or before 6. 12. 13. They failed to do so and therefore squandered their time and resources.  Further the claimant aware that the current application was filed on 27. 6.2013 almost four (4) months after the respondents were served with the Judgment and they did nothing and therefore the claimants contention is that the respondents application is meant to delay this case further and punish her.

The conduct of the respondents and their  lack of interest in the case is explicity exhibited by their chronic absence from Court on various occasions and their failure to file a defence. The respondents now contend that it is their counsel to blame and not themselves and they should not be condemned for the mistakes of their counsel.  The respondent however does not answer to the fact that they were served with the Judgment in this case and only filed  this application  four (4) months later after the execution process commenced an indication that they were not keen on this case until the execution was about to  proceed.

In the case of Patel V.E.A. Cargo Handling  Services (1974) EA 75, the  Court  had this to say:-

This issue of discretion was also discussed inShah Vs Mbogo (1967) EA 116where the Court stated  as follows:-

Whereas this Court has a wide discretion to allow this application  the Court cannot aid those who are bent to deliberately delay or obstruct justice as seen in this case where the applicants deliberately ignored court discretion to file defence and  even  pay costs.  The Applicants only woke up to move this court when execution processes were commenced and this  was a deliberate move to delay this case further.  The draft defence annexed to this application has also been considered and is a mere denial and it raises no  triable issues.  I do  not find this application merited and  I therefore dismiss it with costs accordingly.

HELLEN  WASILWA

30. 1.2014

Appearance

Kitiwa for respondent/applicant – absent