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JudgmentMARTINS ADAMS WAMUKOTA SITUMA VS Bungoma County AND SPEAKER /CHAIRMAN OF CASB AND 1 Others5 min read

MARTINS ADAMS WAMUKOTA SITUMA VS Bungoma County AND SPEAKER /CHAIRMAN OF CASB AND 1 Others

Employment and Labour Relations Court at Bungoma ELRC · · Jemimah Wanza Keli

Summary

The court allowed the Claimant's Notice of Motion application dated 29 February 2024, setting aside its order dismissing the Claimant's claim for non-attendance on 31 January 2024. The court found that the Claimant's absence was due to circumstances beyond his control (a vehicle breakdown and bereavement), and that the ex parte orders ran afoul of Article 25(c) and 50(1) of the Constitution. The court reinstated the claim for hearing on merit, noting the Respondent would suffer only costs prejudice, and the application was allowed with costs to the Respondent.


(On the Notice of Motion Application dated 29th February 2024 by the Claimant/Applicant)

  1. The ruling is on application by way of a Notice of Motion application by the Claimant /Applicant (herein “Applicant”) dated 29th February 2024 brought under the provisions of Order 12, Rule 7 Order 51 rule 1, and Rule 15 of the Civil Procedure Rules, and Articles 25(c) and 50(1) of the Constitution, seeking the orders: -
  2. The Honourable court be pleased to vary or set aside its orders issued on 31st January 2024 dismissing the Claimant’s claim dated 9th April 2021 for non-attendance.
  3. The Claimant’s claim dated 9th April 2021 be and is hereby ordered reinstated for hearing and determination on merit.
  4. The costs of the application be provided for.
  5. The Notice of Motion was premised on the grounds on the face of the application and the grounds in the applicant’s supporting affidavit sworn on 28th February 2024 as follows: -
  6. The court dismissed the applicant’s claim on 31st January 2024(MAWS1).
  7. That the Applicant’s two previous non-attendances of two hearings on 28th November 2023 and 31st January 2024 respectively, had not been deliberate, but had been occasioned by sufficient cause.
  8. That on 23rd November 2023, the applicant lost his son as per the Certificate of Death produced (MAWS2 2024) and the burial took place on 29th November 2023 as per the burial permit (MAWS3 2024) and the applicant had been making the burial preparations and was not in the right mental frame to participate in the said hearing and an adjournment was granted by the court.
  9. That on 31st January 2024, the vehicle the applicant boarded from Kisumu to Bungoma stalled and he had to board a new vehicle which resulted in him arriving in court late (MAWS4 2024-Bus ticket/boarding pass).
  10. That the Applicant called his advocate to inform him to seek an adjournment until noon, and when the Applicant arrived in court at 11.46 am the matter had been called and dismissed for non-attendance.
  11. The applicant was not aware his advocate had filed a Notice to cease acting for him under Order 9 Rule 13(1) of the Civil Procedure Rules, and the said Notice was only served upon him via email at 1012 am, 48 minutes to the hearing fixed for 31st January 2024, and the claimant only accessed the said email after his suit had been dismissed.
  12. That as per his explanation, he had no advocate on record as the orders to cease acting granted to his advocate had been granted ex parte.
  13. That the ex parte orders dismissing his claim for non-attendance and the Exparte orders to his advocate to cease acting ran afoul of Article 25(c) and 50 of the Constitution on the right to a fair hearing.
  14. That the applicant should have been granted time to procure a new advocate or prepare to represent himself.
  15. That in the interest of justice, the court should set aside or vary its orders of 31st January 2024 to allow his claim to be heard on merit. That no prejudice will be suffered by the Respondent if the claim is reinstated.
  16. The application was opposed by the Respondents who filed a statement of grounds of opposition dated 25th March 2024 of an even date, stating that: -
  17. The application is vexatious, frivolous, scandalous and an abuse of the court due process of court as the claimant has not explained the inordinate delay in applying.
  18. The claimant’s conduct is wanting as per the court’s record and indeed his claim was dismissed for want of prosecution and the claimant had been given a last adjournment and he does not deserve the equitable relief sought in the application.
  19. That the annexures in the Applicant’s application are suspect and the respondents will suffer prejudice taking into account that the case has been in court for over 3 years without being prosecuted.
  20. That Article 25(c) and 50(1) of the Constitution do not apply to the applicant as he is hell-bent to frustrate the expeditious disposal of the administration of justice in line with Article 47 of the Constitution of Kenya.
  21. That the Respondents have already filed and served a Bill of Costs on the Claimant and litigation must come to an end.

WRITTEN SUBMISSIONS

  1. The court directed that the application be canvassed by way of written submissions. The parties complied. The Applicant’s written submissions dated 22nd April 2024 were filed by the Applicant in person. The Respondents’ written submissions dated 25th April 2024 were filed by Omundi Bw’ Onchiri Advocates on an even date.

DETERMINATION

Issues for determination.

  1. The Applicant addressed the following issues in his written submissions: -
  2. Whether the Respondents are to submit on “Want of Prosecution” when the Claimant’s claim was dismissed for non-attendance on 31st January 2024.
  3. Whether the Court should set aside the impugned ex parte order that dismissed the Claim for non-attendance on 31st January 2024.
  4. Whether the Respondents’ filing of the Bill of Costs is a bar against the Applicant from lodging the instant Notice of Motion.
  5. Whether the Respondent's unfiled submissions are admissible in this court.
  6. Whether the Claimant’s Annexures in support of the instant Notice of Motion are inauthentic.
  7. Who will bear the cost of the Notice of Motion dated 29th February 2024.
  8. The Respondents submitted globally in support of their grounds of opposition affirming that the applicant is not entitled to the equitable orders sought, having failed to show why he filed his application late, an indication of his deliberate action to obstruct and delay justice.
  9. The court having perused the pleadings by the parties and their submissions was of the considered opinion that the issues placed before the court by the parties for determination of the application is whether the application is merited.
  10. The court’s record indicates that on the 31st January 2024 when the case was coming up for further hearing at 11 am, Udoto Kongani appeared holding brief for Kipngeno Advocate for the claimant and informed the court that they no longer wished to appear for the claimant. The counsel for the respondent informed the court they were ready to proceed. The claimant was absent. The claim was dismissed for non-attendance by the Claimant.
  11. The claimant in the affidavit in support of the application informed the court that he was using a Public Service Vehicle (PSV) which broke down on the way to court and by the time he arrived, his case had already been dismissed.
  12. It is trite that a party must be afforded a reasonable opportunity to be heard consistent with the provisions of the right to a fair hearing under Article 50 of the Constitution.
  13. Taking into account the circumstances leading to the dismissal of the case, I am satisfied it would be an injustice to lock the claimant desiring to be heard out of court.
  14. The Court finds that the only prejudice the respondent can suffer is of costs.
  15. The application dated 29th February 2024 is allowed. The dismissal is set aside and the case is reinstated for hearing from where it had reached.
  16. Costs to the respondent in the cause.
  17. Parties to take a hearing date for the Claim.
  18. It is so Ordered.

DATED, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 26TH DAY OF JUNE 2024.


    MARTINS ADAMS WAMUKOTA SITUMA VS Bungoma County AND SPEAKER /CHAIRMAN OF CASB AND 1 Others MARTINS ADAMS WAMUKOTA SITUMA VS Bungoma County AND SPEAKER /CHAIRMAN OF CASB AND 1 Others