1. The Claimant placed before the Court a Notice of Motion application dated brought under section 12 of the Employment and Labour Relations Court Act and all enabling provisions of the law seeking the following orders:-
a. That this Honorable Court be pleased to reinstate the claimant's suit and allow the claimant to comply with the conditions that had been set by the court in its ruling dated 18th November 2020.
b. That the costs of this application be in the cause.
2. The application was based on the grounds in the application and the affidavit of Sylvia Malemba Kitonga advocate and a partner in the firm of S.M. Kitonga & Co. Advocates. The grounds in the application and supporting affidavit were to the effect that the respondent vide application dated 9th March 2020 sought for the court to dismiss the claim for want of prosecution. The advocate stated that she responded to the said application on behalf of the claimant vide her replying affidavit of 30th June 2020. That the ruling was on notice. That unknown to the claimant the ruling was delivered in the 18th of November 2020 but no notice of the ruling was issued. It appeared to be an oversight of the court and the ruling came to their attention after notice to show cause was issued in a sister file on 22nd August 2020. That it was during the mention of sister file Nairobi ELRC Cause No. 1079 of 2016 before the Deputy Registrar when the delivery of the ruling was brought to their attention and the same was posted on the portal same day at 4 pm.
3. The applicant asked the court based on the reason of lack of notice of ruling, to review its orders to allow reinstatement of the suit and allow the claimant to comply.
Response
4. The Respondent submitted that through replying affidavit sworn on the 1st February 2024 by the director of the Respondent, the respondent contended that the claimant was guilty of inordinate delay in bringing the present application. That the claimant was completely disinterested in the prosecution of the claim and no plausible reason had been given for reinstating the suit. That the application be dismissed with costs.
Written submissions
5. The application was canvassed by way of written submissions. The applicant's written submissions drawn by S.M Kitonga & Company Advocates were dated 19th February 2024. The respondent’s written submissions drawn by Kinyua Mwaniki & Wainaina advocates were dated 5th March 2024.
Decision.
Whether the application was merited.
6. The court perused the submissions of the parties and noted the contents and decisions cited by the respondent. The claimant did not cite any authority.
7. The application is brought under section 12 of the Employment and Labour Relations Court Act to wit:-
‘’12. Jurisdiction of the Court
(1) The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including —
(a) disputes relating to or arising out of employment between an employer and an employee;
(b) disputes between an employer and a trade union;
(c) disputes between an employers' organisation and a trade unions organisation;
(d) disputes between trade unions;
(e) disputes between employer organizations;
(f) disputes between an employers' organisation and a trade union;
(g) disputes between a trade union and a member thereof;
(h) disputes between an employer's organisation or a federation and a member thereof;
(i) disputes concerning the registration and election of trade union officials; and
(j) disputes relating to the registration and enforcement of collective agreements.
(2) An application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer's organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.
(3) In exercise of its jurisdiction under this Act, the Court shall have power to make any of the following orders
(i) interim preservation orders including injunctions in cases of urgency;
(ii) a prohibitory order;
(iii) an order for specific performance;
(iv) a declaratory order;
(v) an award of compensation in any circumstances contemplated under this Act or any written law;
(vi) an award of damages in any circumstances contemplated under this Act or any written law;
(vii) an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or
(viii) any other appropriate relief as the Court may deem fit to grant.
(4) In proceedings under this Act, the Court may, subject to the rules, make such orders as to costs as the Court considers just.’’ Section 12 gives details of the original and appellate jurisdiction of the Court to hear and determine all disputes referred to it under Article 162(2) of the Constitution.
8. The order sought in the application was that, the Honorable Court be pleased to reinstate the claimant's suit and allow the claimant to comply with the conditions that had been set by the court in its ruling dated 18th November 2020.
9. The claimant’s counsel was the one who swore the affidavit in support of the application to reinstate the suit under the ruling dated 18th November 2020 and in the instant application. Why? How will the court discern whether the claimant is still interested in the prosecution of the case? The court asked itself why the claimant would not be the one to ask the court for a second chance to reinstate the suit.
10. The claimant’s counsel averred that they were not issued with notice of the ruling delivered on the 18th of December 2020. One of the grounds of the application was that the ruling was brought to their attention by the DR Hon. Kyanya on the mention of a sister file on 1st March 2023.
11. This is a court of record. On perusal of the court record, the court returns that on the 29th September 2020 Justice Radido informed the parties the ruling on the application for reinstatement of claim would be on notice. On the record was a notice issued by Deputy Registrar Kisumu ELRC for the delivery of the ruling on 18th December 2020 by Justice Radido.
12. The ruling was delivered in the absence of all the parties on the 18th of November 2020. Subsequently, on the 8th of July 2021, a notice to show cause was issued in the matter of why it should not be dismissed for want of prosecution. The notice was served vide email as per the affidavit of service of the court process server Samuel Kinga Anyoka of 5th August 2021. The applicant’s advocate was served on email kitonga.sylvia99@gmail.com. The outcome of the date and the said NTSC is not recorded. On the 15th December 2021 the matter was mentioned before Justice Ocharo Kebira and Ms. Kitonga appeared for the claimant and the claim was fixed for hearing on 3rd May 2022.
13. The court deduced that on the 15th December 2021, the counsel for the Claimant became aware of the reinstatement of the suit and that is why the claim was fixed for hearing. The court returns that the advocate for the applicant/claimant was not candid with the court in the circumstances.
14. The ruling by Justice Radido in paragraph 7 states that the claimant had not taken any steps to prosecute his case since the case was last in court on 20th February 2018. At paragraph 11 the court found that the explanations for inaction on the part of the claimant did not appear convincing or sufficient and that it was inexplicable that it took the claimant a year to find a corroborative witness. In paragraph 15 the claimant was granted the last opportunity to prosecute his case on condition of filing further witness statement in 15 days and payment of wasted costs of Kshs. 7500. The court stated that in the event of non-compliance, the suit stood dismissed.
15. The court on perusal of the court record did not file any further witness statement by the claimant which was the reason given for the delay in the application before justice Radido. The court returns that the instant application is hopeless and does not disclose sufficient cause to grant the order sought. The court already found that from the record the case was fixed for hearing on 15th December 2021 in the presence of the counsel for the claimant who has sworn the affidavit in support of the application stating they only became aware of the ruling on 1st March 2023. The court finds the position of counsel is not supported by the court record. The court finds the case having been fixed for hearing on the 15th December 2021 in the presence of the claimant’s counsel who did not ask the court, before Justice Ocharo, about the ruling, the issue of lack of notice of the ruling was water under the bridge.
16. The Court vide Justice Radido in ruling of 18th November 2020 gave the claimant the last opportunity. No review or appeal has been filed against the said decision. The applicant seeks for the court to exercise its jurisdiction to reinstate the suit. I already found no sufficient reasons for the delay in filing the suit. It is trite that litigation must come to an end. The court discerned that was the basis of the conditions for reinstatement of the suit. The court has already exercised its discretion once and reinstated the suit. It finds no reason to revisit the issue. The court is guided by the decision in Shah -vs- Mbogo & Another (1967) EA 1116, cited with approval by Justice J. Mulwa in Bilha Ngonyo Isaac v Kembu Farm Ltd & Attorney General [2018] KEHC 4729 (KLR) Where the court stated:- “The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.”
17. The court finds that allowing the application would be a great injustice to the respondent which has been kept in court since 2016 when the suit was filed. The conduct of the claimant leads the court to believe he was deliberately delaying justice by not attending court, not personally swearing an affidavit in support of the reinstatement in the two instances, and not complying with the court order to file further witness statement as per ruling of Justice Radido of 18th November 2020.
18. In the upshot the application dated 16th March 2023 is dismissed for lack of merit with costs to the respondent.
19. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF NOVEMBER, 2024.