Mwachupa Haranga Ndurya v Krystalline Salt Limited [2018] KEELRC 1397 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT MOMBASA

CAUSE NUMBER 127 OF 2016

BETWEEN

MWACHUPA HARANGA NDURYA.......................CLAIMANT

VERSUS

KRYSTALLINE SALT LIMITED.......................RESPONDENT

RULING

1. This Claim was heard and proceedings closed in the absence of the Respondent and its Counsel, on 5th February 2018. Judgment was delivered in the presence of Counsel for the respective Parties, on 8th March 2018.

2. The Respondent filed an Application dated 8th March 2018, asking the Court to set aside ex parte proceedings of 5th February 2018 and Judgment of 8th March 2018. The Court has been asked also, to reopen proceedings and recall the Claimant for purposes of cross-examination.

3. The Application is supported by the Affidavit of Respondent’s Counsel Beatrice Opolo, sworn on 8th March 2018.

4. She explains it was not her intention, or that of her Client, not to attend Court on 5th February 2018 when the matter was heard and concluded. The hearing date was taken in Court by consent, but Ms. Opolo failed to note the date in her diary. This was through inadvertence of Counsel, not a deliberate omission.

5. The Respondent learnt the matter had been called out, heard and concluded later in the day, on 5th February 2018. The Respondent has a good Response to the Claim, with probability of success. The Claimant would not suffer any prejudice. Ms. Opolo explains she was in Court Number 2, which is adjacent to Court Number 1, appearing before Hon. Justice Ndolo, when the matter proceeded in Court Number 1 on 5th February 2018. She did not intentionally avoid Court Number 1. She submits that Claimant’s Advocate should have alerted her about proceedings in Court Number 1.

6. The Claimant filed a Replying Affidavit sworn by himself on 15th March 2018. He repeats what he said in his evidence during the ex parte hearing: that he was summarily dismissed by the Respondent after he was injured in a road accident. Hearing of the Claim was scheduled in Court by the Parties’ Representatives. The Claimant states he was in Court on 5th February 2018. He saw Counsel for the Respondent consult the Court Assistant, and walk out. She went to Court Number 2, from where the Claimant could see her. Counsel cannot claim to have failed to diarize the matter. The Application is only meant to deny the Claimant the fruit of his litigation. The Claimant would be prejudiced by further delay in the proceedings as he has been out of employment for 4 years.

The Court Finds:-

7. Setting aside of ex parte Proceedings and Judgment is a matter of discretion of the Court. The main concern for the Court is to do substantive justice to the Parties. The discretion is intended to be exercised to avoid injustice, or hardship, resulting from accident, inadvertence or error. Exercise of discretion is not intended to assist a Party to obstruct or delay the cause of justice. The reason given, as the cause of failure to attend Court, must be examined. It must be considered whether there is an arguable Response to the Claim, and whether the Claimant can be compensated by costs for the delay reopening of proceedings would occasion to the Claimant. Overall the Court must endeavour to administer substantive justice. There is an arguable Response filed. Ms. Opolo, who represents the Federation of Kenya Employers [FKE], does not have a history of deliberate failure to attend Court. She was on the material date in Court Number 2, as confirmed by the Claimant in his Affidavit. It is not logical that she would just walk out from Court Number 1, if she was aware that the matter was being heard on 5th February 2018. The Court is satisfied that the Respondent does not intend to obstruct justice, through the Application for setting aside of ex parte Proceedings and Judgment. The Court acknowledges also that the Claimant has incurred costs in the concluded proceedings, and reopening of proceedings, and recall of the Claimant, shall result in additional costs incurred by the Claimant. These can however, be compensated by an order for payment of costs to the Claimant, by the Respondent.

8. The Court accepts Respondent’s Counsel’s explanation that she noted the wrong hearing date on her diary. Her failure to attend Court on 5th February 2018 was through human error.

IT IS ORDERED:

a) Ex-parte Proceedings of 5th February 2018 and Judgment of 8th March 2018 are hereby set aside.

b) Hearing de novo on a date to be agreed upon by the Parties.

c) The Respondent shall pay to the Claimant costs of Kshs. 25,000 within the next 14 days.

Dated and delivered at Mombasa this 27th day of July 2018.

James Rika

Judge