The respondents, Diani Marine Limited and Thomas Sollacher, filed the application dated 27 March 2025, seeking to set aside the orders that the judgment herein be arrested and not delivered on 30 April 2025. The court will reopen the matter for a hearing, and the respondents can call their witnesses.
George Mungai Kamau, an advocate for the respondents, supports the application through his affidavit and states that there was an ex parte hearing. When the matter came up for hearing, the respondents faced technical challenges and could not join the court. The advocate realised that the matter proceeded to the hearing, and the case closed when the matter came up for mention on 17 March 2- 25, and judgment was allocated for 30 April 2025.
The respondents have complied with Order 11 and have an arguable defence. They will be prejudiced if the judgment is delivered with cross-examination of the claimant’s witness and being allowed to state their case in response.
In response, the claimant opposed the application on the grounds that it was an abuse of court process and intended to undermine justice under article 50(1) of the Constitution. The respondents refused to settle the matter amicably since 14 July 2022 and chose to delay the hearing. This compelled the claimant to escalate the issue by reporting to the Minister for conciliation.
Despite writing to the respondents several times, they failed to respond.
The hearing date was allocated in the presence of both parties on 20 January 2025. The hearing date for 24 February 2025 was with the approval of the respondents.
The respondents chose not to attend either through their advocates or personally. The current application is solely intended to delay justice in this matter and should be rejected. There is no evidence of what steps the respondents took immediately after discovering the alleged technical issues during the hearing. There was a lack of prompt efforts to address such concerns until the matter was brought up and a trial date was set. The application should be dismissed with costs.
The respondents filed written submissions, which are analysed, and the issues that emerge for determination are whether the court should re-open the matter for hearing after the respondents failed to attend court due to alleged technical hitches when the matter was scheduled for hearing on 24 February 2025.
Determination
Judgment herein has since been delivered as scheduled on 30 April 2025.
Judgment was delivered on the background that both parties attended court on 20 January 2025 and were allocated a hearing date of 24 February 2025. Only the claimant attended, and the matter was heard and closed.
The court allowed parties to file written submissions and mention on 17 March 2025 to confirm compliance.
Noteworthy, from 24 February 2025, when the respondents alleged that their advocate encountered technical hitches and was thus unable to attend court, nothing was done to arrest the situation or move the court to allow for any accommodations. Furthermore, when the respondents learnt on 17 March 2025 that the matter had proceeded for hearing and closed on 17 March 2025, this instant application was not expedited. The respondents waited until the eve of the judgment date, scheduled for 30 April 2025, to file the instant application.
Should the matter be reopened to allow for cross-examination and a response?
Court in John Mukuha Mburu v Charles Mwenga Mburu [2019] KEELC 4676 (KLR), Golden Century Limited v Josef [2025] KEELC 4397 (KLR), and Africa Blooms Limited v Gatari (Suing as the Legal Representative of the Estate of Samuel Karuga Gatari - Deceased) [2023] KECA 918 (KLR) has held that the failure to attend court on a date taken by consent is not an excusable mistake. The non-attendance of the Court, where the reasons given are vague and a calculated afterthought to circumvent due process, should not be permitted. Such conduct undermines the rule of law.
In this case, where indeed counsel experienced technical challenges in attending court on 24 February 2025 as alleged, he does not account for the whereabouts of the respondents as the right-holders. They have not supported the instant application with an affidavit confirming they were aware of the court hearing and could not attend due to similar internet and technical challenges.
Parties must willingly provide a truthful and proper explanation for court non-attendance on a mutually agreed date. Otherwise, attending court becomes an endless cycle without resolution. The technical difficulties or challenges faced by counsel for the respondents are not demonstrated. It is unacceptable to cite internet problems and then sit back, expecting the issue to resolve itself. Justice to the other party requires a proper explanation and valid reasons.
Judgement otherwise having been delivered, it is lawful and valid. The respondents have not demonstrated any reasonable cause for the matter to be re-opened.
Accordingly, application dated 27 March 2025 is without merit and is hereby dismissed with costs to the claimant assessed at Ksh. 20,000 in accordance with Section 12(4) of the Employment and Labour Relations Court Act and Rule 70(1) of the Employment and Labour Relations Court (Procedure) Rules.
Delivered in open court at Mombasa this 1st day of July 2025
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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