Stephen Kivuva Kasilia v Metal Equipment Engineering Ltd [2018] KEELRC 364 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 2026 OF 2013

STEPHEN KIVUVA KASILIA                                 CLAIMANT

v

METAL EQUIPMENT ENGINEERING LTD  RESPONDENT

RULING

1. Before Court is an application dated 14 August 2018 by Stephen Kivuva Kasilia (applicant) seeking orders

1. THAT the Honourable Court be pleased to set aside and/or vary the orders made on 9th July 2018 and other consequential orders made pursuant thereto.

2. THAT the Claimant’s claim be reinstated.

3. THATthe cost of this application be in the cause.

2. The grounds in support of the application are that the failure of the advocate for the applicant to attend the Court for hearing on 9 July 2018 was not intentional as she had failed to diarise the hearing date; that the applicant has a good case, and that the applicant stood to suffer irreparable harm if the Cause was not reinstated.

3. In opposing the application, the Respondent through its Chief Accountant asserted that when the Cause came up for hearing on 18 April 2018, the applicant had not complied with directions issued on 23 January 2018, that the applicant had also failed to serve a hearing notice and could not produce evidence of service on 19 April 2018 as directed by the Court and that the applicant was then granted up to 24 April 2018 to provide the evidence but no such evidence was produced and that the applicant wilfully failed to attend Court on 3 July 2018 when the Cause came up for hearing and 9 July 2018, when the Notice to Show Cause came up.

4. The Court has considered the application and the record.

5. When the Cause came up for hearing on 18 April 2018, the applicant indicated that he had complied with pre-trial directions given on 23 January 2018, but the Respondent denied compliance/service, and the Court ordered the applicant to produce proof of compliance/service on 19 April 2018.

6. On 19 April 2018, the applicant indicated that it had filed an affidavit.

7. The affidavit deposed to service/compliance on 19 April 2018. The applicant had been directed to comply before 30 January 2018 (but did not). The Court directed the applicant to file evidence as earlier directed.

8. On 29 May 2018, the applicant appeared before the Deputy Registrar when the Cause was fixed for mention on 3 July 2018 but failed to appear/there was no representation, and the Court therefore directed a Notice to Show Cause to issue for 9 July 2018.

9. The Notice to Show Cause was served but the applicant again failed to appear on 9 July 2018, and the Court dismissed the Cause.

10. It can be concluded from the record that the applicant has been dishonest with the Court. He stated on 18 April 2018 that he had served and complied with pre-trial directions while the service and compliance was on 19 April 2018.

11. The applicant also knew that he was required to show cause on 9 July 2018 but failed to attend Court. There has been no attempt to explain the failure.

12. The record also show that an application to dismiss the Cause for want of prosecution had been filed on 11 October 2017. The applicant has not only been dishonest but also casual in dealing with his case.

13. For the above reasons, the Court finds that the application lacks merit and orders it dismissed with costs to the Respondent.

Delivered, dated and signed in Nairobi on this 7th day of December 2018.

Radido Stephen

Judge

Appearances

For applicant       Mrs. Nyaberi instructed by Maari Nyaberi & Associates

For Respondent   Ms. Athman instructed by Tariq Khan & Associates

Court Assistant    Lindsey