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Ayiega v Falcon Signs Limited (Cause 704 of 2015) [2025] KEELRC 141 (KLR) (30 January 2025) (Ruling)

Ayiega v Falcon Signs Limited (Cause 704 of 2015) [2025] KEELRC 141 (KLR) (30 January 2025) (Ruling)
Citation
Ayiega v Falcon Signs Limited [2025] KEELRC 141 (KLR)
Media Neutral Citation
[2025] KEELRC 141 (KLR)
Court
Employment and Labour Relations Court
Court station
Employment and Labour Relations Court at Nairobi
Outcome
Dismissed
Case number
Cause 704 of 2015
Attorneys
Judges
S Radido
Judgment date
30 January 2025
Language
English
Type
Judgment
Original source file
Download DOCX (63.9 KB)
Collections
Date published
03 February 2025
Case action
Ruling
Court division
Employment and Labour
Filing county
Nairobi
Order
The Motion dated 12 March 2024 was dismissed with costs in the cause.
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1.Douglas Ondieki Ayiega (the Claimant) sued Falcon Signs Ltd (the Respondent) on 28 April 2015, alleging unfair termination of employment and breach of contract.
2.Despite service, the Respondent did not enter appearance and on 21 March 2019, the Court directed that the Cause proceed to formal proof.
3.When the Cause was called out for hearing on 24 October 2019, the Claimant and his advocate were not present. The Court dismissed the Cause for non-attendance.
4.On 5 June 2024, the Claimant filed a Motion dated 12 March 2024 seeking orders:i.That the orders of this Honourable Court made on 24th October 2019 dismissing this suit be and hereby lifted and/or set aside.ii.That this suit No. 704 of 2015 be hereby reinstated.iii.That in the alternative this Industrial Cause No. 704 of 2015 be reinstated and transferred to the Subordinate Court in line with Gazette Notice Number 6024.iv.That cost of this application be provided for.
5.The main grounds advanced in support of the Motion were that the Cause was dismissed during COVID-19 when movement was restricted and therefore the advocate could not attend Court; the Claimant stood to suffer irreparable harm if the Cause was not reinstated; the Cause raised triable issues which fairness dictated should be heard since no prejudice would be occasioned to the Respondent and that the Court had the powers to grant the orders sought.
6.The Court took brief oral submissions from the Claimant on 18 November 2024.
7.The Court has considered the Motion, affidavit in support and the oral submissions.
8.The principles attendant to an application as the instant one requires an exercise of the Court’s discretion and was set out in Mbogo v Shah (1979) EA 116 thus:this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.
9.The Cause was dismissed on 24 October 2019, and the instant Motion was filed on 5 June 2024, more than 5 years after. The applicant has not disclosed when he found out the Cause was dismissed or even attempted to explain the delay in moving the Court.
10.The Claimant was seeking an exercise of the Court’s discretion. He has not satisfied the Court that the discretion should be exercised in his favour.
Orders
11.The Motion dated 12 March 2024 is dismissed with costs in the cause.
DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI ON THIS 30TH DAY OF JANUARY 2025.RADIDO STEPHEN, MCIArbJUDGEAppearancesFor Claimant Ong’uti & Co. AdvocatesFor Respondent did not enter appearanceCourt Assistant Wangu
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