1. Before Court is the Respondent’s Motion application dated 29th April, 2024, brought pursuant to rule I3 (5) and I7(1,(3) of the Employment and Labour Relation(Procedure) Rules. The Applicant seeks the following reliefs:
i. Spent
ii. THAT the Honourable Court be pleased to set aside the orders of 24/04/24 and all consequential orders
iii. THAT leave be granted to the Respondent to file its response to Claim out of time.
iv. THAT the response to claim dated 29th April 2024 and filed herewith, be deemed as duly filed and served.
v. THAT the Defendant be granted unconditional leave to defend this suit as per the annexed response to claim.
vi. THAT the costs of this Application be in the cause.
2. The Motion is supported by the grounds on the face thereof and the supporting affidavit of Philip M. Kichana, the Corporation Secretary and Principal Legal Officer of the Respondent.
3. The Respondent avers that it received summons to enter appearance and the statement of claim on 28th March, 2024, and immediately forwarded the same to the office of the Attorney General in Nairobi requesting for representation.
4. It avers that on 24th April, 2024, it received a notice for formal proof hearing and upon inquiry, it discovered that the file was not allocated to a counsel or forwarded to the office of the Attorney General at Kisumu offices for purposes of filing a response to the claim. That Failure to file the response was not wilful, but was a result of miscommunication between the in-house counsel and office of the Attorney General in Nairobi.
5. The Respondent states that upon receiving notice, it quickly informed the office of the Attorney General in Nairobi who informed them that they inadvertently overlooked to forward the pleadings to Kisumu.
6. That the Claimant herein will not be prejudiced in any way whatsoever by this Honourable Court granting leave to the Respondent to respond to the claim out of time, and in them being allowed to defend the suit.
7. That the said leave is necessary in the interests of justice so that the real issues in controversy between the parties are placed before the Court for final and effectual determination.
8. The Claimant opposed the motion vide grounds of opposition dated 20th May, 2024. He avers that though the Applicant admits having received summons to enter appearance, it has not satisfactorily explained the delay in filing its response as there is no affidavit sworn by the Office of the Attorney General explaining the circumstances for the delay.
9. It is the Claimant’s assertion that the Respondent\'s application dated 29th April, 2024 is misconceived, bad in law and an abuse of the process of this honourable court.
10. Parties sought to canvass the motion by way of written submissions. Submissions were received from both parties, and which have been duly considered.
Analysis and Determination
11. I have considered the Motion, the grounds and affidavit in support and the grounds of opposition filed by the Claimant/Respondent. The singular issue for determination is whether the motion has merited.
12. The Claimants only objection to the application is premised on having been brought under the wrong provisions of the law. Indeed, the provisions pursuant to which the motion is premised are not applicable to the instant application. Having said this, the Court of Appeal in Abdirahaman Abdi v Safi Petroleum Products Ltd. & 6 others [2011] eKLR, held that:-
“…………..Article 159 (2) (d) of the Constitution makes it abundantly clear that the court has to do justice between the parties without undue regard to technicalities of procedure. That is not however to say that procedural improprieties are to be ignored altogether. The court has to weigh the prejudice that is likely to be suffered by the innocent party and weigh it against the prejudice to be suffered by the offending party if the court strikes out its documents. The court in that regard exercise judicial discretion”.
13. Further in Nicholas Salat v IEBC & 6 others, CA (Application) No 228 of 2013, the Court of Appeal held that;-
“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”
14. Order 10 Rule 11 of the Civil Procedure Rules states thus: -
“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”
15. The foregoing provisions empower this court to set aside a judgment and any consequential orders in order to advance the course of justice. In John Peter Kiria & another v Pauline Kagwiria [2013] eKLR it was held that no party should be shut out from ventilating its defence, that a court may set aside interlocutory judgment if a party had a reasonable defence which raises triable issues and that at all possible times, cases should be heard on merit.
16. Similarly, in the case of Prime Bank Limited vs Paul Otieno Nyamodi [2014] eKLR, it was held that it did not follow that just because a mistake had been made, a party should suffer the penalty of not having his case heard on merit.
17. In light of the foregoing, I find the Applicant motion to have merit and is allowed in the following terms:
i. That the interlocutory judgment and orders of 24th April, 2024 be and is hereby set aside.
ii. That leave be and is hereby granted to the Respondent to file its response to Claim out of time, and to do so within 21 days of this order.
iii. That costs shall be in the cause.
18. It is so ordered.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 26TH DAY OF SEPTEMBER, 2024.
CHRISTINE N. BAARI
JUDGE
Appearance:
Mr. Ken Omolo present for the Claimant/Respondent
Ms. Juma present for Respondent/Applicant
Ms. Anjeline Wanjofu-CA.
i. Spent
ii. THAT the Honourable Court be pleased to set aside the orders of 24/04/24 and all consequential orders
iii. THAT leave be granted to the Respondent to file its response to Claim out of time.
iv. THAT the response to claim dated 29th April 2024 and filed herewith, be deemed as duly filed and served.
v. THAT the Defendant be granted unconditional leave to defend this suit as per the annexed response to claim.
vi. THAT the costs of this Application be in the cause.
2. The Motion is supported by the grounds on the face thereof and the supporting affidavit of Philip M. Kichana, the Corporation Secretary and Principal Legal Officer of the Respondent.
3. The Respondent avers that it received summons to enter appearance and the statement of claim on 28th March, 2024, and immediately forwarded the same to the office of the Attorney General in Nairobi requesting for representation.
4. It avers that on 24th April, 2024, it received a notice for formal proof hearing and upon inquiry, it discovered that the file was not allocated to a counsel or forwarded to the office of the Attorney General at Kisumu offices for purposes of filing a response to the claim. That Failure to file the response was not wilful, but was a result of miscommunication between the in-house counsel and office of the Attorney General in Nairobi.
5. The Respondent states that upon receiving notice, it quickly informed the office of the Attorney General in Nairobi who informed them that they inadvertently overlooked to forward the pleadings to Kisumu.
6. That the Claimant herein will not be prejudiced in any way whatsoever by this Honourable Court granting leave to the Respondent to respond to the claim out of time, and in them being allowed to defend the suit.
7. That the said leave is necessary in the interests of justice so that the real issues in controversy between the parties are placed before the Court for final and effectual determination.
8. The Claimant opposed the motion vide grounds of opposition dated 20th May, 2024. He avers that though the Applicant admits having received summons to enter appearance, it has not satisfactorily explained the delay in filing its response as there is no affidavit sworn by the Office of the Attorney General explaining the circumstances for the delay.
9. It is the Claimant’s assertion that the Respondent\'s application dated 29th April, 2024 is misconceived, bad in law and an abuse of the process of this honourable court.
10. Parties sought to canvass the motion by way of written submissions. Submissions were received from both parties, and which have been duly considered.
Analysis and Determination
11. I have considered the Motion, the grounds and affidavit in support and the grounds of opposition filed by the Claimant/Respondent. The singular issue for determination is whether the motion has merited.
12. The Claimants only objection to the application is premised on having been brought under the wrong provisions of the law. Indeed, the provisions pursuant to which the motion is premised are not applicable to the instant application. Having said this, the Court of Appeal in Abdirahaman Abdi v Safi Petroleum Products Ltd. & 6 others [2011] eKLR, held that:-
“…………..Article 159 (2) (d) of the Constitution makes it abundantly clear that the court has to do justice between the parties without undue regard to technicalities of procedure. That is not however to say that procedural improprieties are to be ignored altogether. The court has to weigh the prejudice that is likely to be suffered by the innocent party and weigh it against the prejudice to be suffered by the offending party if the court strikes out its documents. The court in that regard exercise judicial discretion”.
13. Further in Nicholas Salat v IEBC & 6 others, CA (Application) No 228 of 2013, the Court of Appeal held that;-
“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”
14. Order 10 Rule 11 of the Civil Procedure Rules states thus: -
“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”
15. The foregoing provisions empower this court to set aside a judgment and any consequential orders in order to advance the course of justice. In John Peter Kiria & another v Pauline Kagwiria [2013] eKLR it was held that no party should be shut out from ventilating its defence, that a court may set aside interlocutory judgment if a party had a reasonable defence which raises triable issues and that at all possible times, cases should be heard on merit.
16. Similarly, in the case of Prime Bank Limited vs Paul Otieno Nyamodi [2014] eKLR, it was held that it did not follow that just because a mistake had been made, a party should suffer the penalty of not having his case heard on merit.
17. In light of the foregoing, I find the Applicant motion to have merit and is allowed in the following terms:
i. That the interlocutory judgment and orders of 24th April, 2024 be and is hereby set aside.
ii. That leave be and is hereby granted to the Respondent to file its response to Claim out of time, and to do so within 21 days of this order.
iii. That costs shall be in the cause.
18. It is so ordered.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 26TH DAY OF SEPTEMBER, 2024.
CHRISTINE N. BAARI
JUDGE
Appearance:
Mr. Ken Omolo present for the Claimant/Respondent
Ms. Juma present for Respondent/Applicant
Ms. Anjeline Wanjofu-CA.