REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 31 OF 2013
[Formerly Cause No. 61 of 2012 at Nairobi]
KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, HOSPITALS &
ALLIED WORKERS............................................CLAIMANT
VERSUS
LESHAU BOYS HIGH SCHOOL.................RESPONDENT
RULING
The Respondent/Applicant filed and served a notice of motion dated 05.12.2013 seeking review of the judgment. It is not disputed that the application was served and fixed for hearing on 12.02.2014. The learned applicant's counsel, Mr. E. N. Njuguna has made submissions at the hearing as scheduled to urge the application.
At conclusion of his submission, Mr. H. Onwong'a for the Claimant raised to make submissions to oppose the application. At that point, Mr. Njuguna raised an objection that Mr. Onwong'a could not submit to oppose the application because the claimant/respondent did not file and serve any opposing replying affidavit or a preliminary objection or a statement of grounds of opposition as envisaged in Order 51 of the Civil Procedure Rules.
I have considered the objection made for applicant. Like Order 51 of the Civil Procedure Rules, Rule 16(6) of the Industrial Court (Procedure) Rules, 2010 requires a respondent who wishes to oppose an application filed in the court to file and serve on the applicant any affidavit, or a statement of the grounds upon which the respondent will oppose the application. The statement of grounds or replying affidavit will be served, under the rule, within seven days of service of the application.
In the circumstances of this case, I find that the claimant now respondent in this application did not comply with the rules to indicate he was going to oppose the application. Such failure is not merely procedural but also substantive because it denied the applicant a chance to respond to the opposition. The claimant now respondent has not sought leave to file the relevant opposing papers.
In the circumstances, I order that the application will be determined on the basis of submissions made for the applicant and the documents on record. Ruling shall be on 14.02.2014 at 9.00 am.
BYRAM ONGAYA
JUDGE
Dated and delivered at Nakuru this 12th day of February, 2014 in presence of Mr. E. N. Njuguna for the Respondent/Applicant and Mr. H. Onwong'a for Claimant/Respondent.