REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 505 OF 2013
PAUL MUTAVI 1ST CLAIMANT
RICHARD MUTUA NTHULI 2ND CLAIMANT
V
DUNMAN INVESTMENTS RESPONDENT
RULING
1. When the Cause herein came up for hearing on 14 March 2018, the Claimants’ advocate informed the Court that they had not been able to serve a hearing notice upon the Respondent as it had moved offices to an unknown place.
2. On the application of the advocate, the Court granted leave for service through registered post and directed that a fresh date be taken in the registry.
3. When the Cause next came up for hearing on 19 June 2018, the Court adjourned the hearing because there was no satisfactory evidence that the Respondent had been served with a hearing notice.
4. On 27 September 2018, the applicants caused the hearing to be fixed for 16 October 2018, but when the file was called out, the applicants and their advocate were not in Court by 9.05am, and the Court dismissed the Cause.
5. The dismissal prompted the applicants to move the Court on 18 October 2018 seeking orders
1. ..
2. THAT the order of the Honourable Court made on the 16th October, 2018 dismissing the suit herein be reviewed, varied and/or set aside.
3. THAT the suit filed herein on 11th April, 2013 be reinstated.
4. THAT the costs of this application be provided for.
6. The grounds advanced in support of the application were that the applicants were outside the courtroom waiting for their advocate; that the advocate was held up in traffic and only arrived at 9.07am to find the Cause dismissed and that the applicants stood to suffer great loss if the application was not allowed.
7. In opposition to the application, the Respondent urged that the applicants had caused the delay in prosecution of the Cause, and therefore the application was not merited.
8. The Court has considered the grounds and affidavit in support of the application and the oral submissions.
9. The orders sought by the applicants are discretionary and the Court has wide powers when exercising such discretion, but the exercise must be judicious and not capricious.
10. The conduct of the applicants in this case has not been diligent. The applicants also appear to be withholding facts which should have been disclosed.
11. The Court says so because there is absolutely nothing on record to show that the applicants served a hearing notice for 16 October 2018. The applicants could not have been ready without a notification of the hearing date to the Respondent.
12. It is not lost to the Court that previous hearings had aborted because of unsatisfactory service.
13. The Court would not be speculating to state that the reasons advanced by the applicants that they were outside the courtroom are an afterthought, for without service of a hearing notice, the hearing could have aborted for the third time.
14. Further, the applicants were on notice that they had been granted the last adjournment on 14 March 2018.
15. The Court finds the application dated 17 October 2018 without merit and dismisses it with no order as to costs.
Delivered, dated and signed in Nairobi on this 30th day of November 2018.
Radido Stephen
Judge
Appearances
For applicants Mr. Nyabena instructed by Nyabena Nyakundi & Co. Advocates
For Respondent Mr. Kinyua instructed by Robi Kerato & Co. Advocates
Court Assistant Lindsey