Simon Kibe Kahwai v MMA Engineering Services Ltd [2019] KEELRC 1478 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 2527 OF 2012

SIMON KIBE KAHWAI............................................CLAIMANT

v

MMA ENGINEERING SERVICES LTD...........RESPONDENT

RULING

1. In a judgment delivered on 21 May 2018, the Court declined to award the Claimant costs because he had failed to file his submissions before judgment.

2. On 12 April 2019, the Claimant filed a motion seeking orders

1. This Honourable Court be pleased to review and/or vary the judgment in the matter hereof as relates to costs and proceed to award costs of the Claim to the Claimant/Applicant.

2. The costs of this application be provided for.

3. Despite being served with the application, the Respondent did not bother to file a response or appear during the hearing on 30 May 2019.

4. The main ground relied on by the Claimant in support of the application was that there was an error apparent on the face of the record when the Court declined to award costs on the basis that he had not filed his submissions.

5. According to the Claimant, any lapse was on the part of the Registry which failed to place the submissions on the file.

6. The Court has considered the application, the grounds and affidavit in support thereof, and come to the conclusion that the application be declined because of the following reasons.

7. One, the judgment sought to be reviewed was delivered about 11 months before the instant application was filed.

8. There was absolutely no explanation why it took such a long time to bring the application.

9. In the view of the Court, the 11 months amounted to inordinate delay which merited explanation.

10. Two, the Court had agreed timelines with the parties for the filing of submissions and towards this end, the Claimant was expected to file and serve his submissions on or before 4 May 2018 while the Respondent was to file its submissions on or before 19 May 2018, ahead of the judgment.

11. The Claimant did not file submissions by the agreed timeline of 4 May 2018, but now contends that the submissions were filed on 15 May 2018.

12. In its submissions filed on 16 May 2018, the Respondent stated that the Claimant had not served it with his submissions by the time it was filing its submissions (it appears that the Claimant served the Respondent with the submissions on 5 July 2018 – 2 months after judgment had been delivered).

13. The fact that the Claimant served the Respondent with submissions about 2 months after judgment is telling.

14. In the view of the Court, and the Court so holds, the Claimant has not demonstrated sufficient grounds for the Court to exercise its discretion in his favour.

15. The motion dated 1 April 2019 is dismissed with no order as to costs.

Delivered, dated and signed in Nairobi on this 31st day of May 2019.

Radido Stephen

Judge

Appearances

For Claimant Mr. Wachira instructed by E.M. Wachira & Co. Advocates

For Respondent Punja & Kagongona Advocates

Court Assistant    Lindsey