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Ogolla v Maasai Mara University (Cause 59 of 2019) [2022] KEELRC 13347 (KLR) (1 December 2022) (Ruling)
Neutral citation:
[2022] KEELRC 13347 (KLR)
Republic of Kenya
Cause 59 of 2019
HS Wasilwa, J
December 1, 2022
Between
Fredrick Ogolla
Claimant
and
Maasai Mara University
Respondent
Ruling
1.Before this court for determination is the respondent/applicant’s notice of motion dated October 5, 2022, filed pursuant to article 159(2)(d) of the Constitution, sections 1A, 1B, 3A, 11, 18(1)(b) of the Civil Procedure Act, sections 3(1) of the Employment and Labour Court Act, order 40 rule 6 & 7, order 50 rule 1 of the Civil Procedure Rules and all other enabling provision of law, seeking the following orders; -1.Spent.2.That the honourable court be pleased to grant leave to the applicant/ respondent to file their response to the memorandum of claim and witness statement out of time.3.That the applicant/ respondent do file and serve its response to the memorandum of claim and witness statement within seven (7) days after leave to file out of time is granted.4.That the court be pleased to grant the applicant/ respondent leave to cross-examine the respondent/ claimant on the claimant’s case.5.That the court be pleased to grant the applicant/ respondent the right to be heard and its case heard on merit.6.That the costs of this application be in the cause.
2.The grounds upon which the application is premised is as follows; -a.That pre-trial in this case was conducted on the June 23, 2022, where the advocate on record gave instructions to another advocate to hold its brief and the matter was erroneously certified ready for hearing.b.That the failure to file a response to claim in this cause was occasioned by an oversight on the part of the applicant’s advocates who have all along been dealing with the preliminary objection filed herein.c.Upon realizing that there was no response to claim filed, the advocates for the applicant informed the claimant’s advocates that it shall be seeking leave of court to file a response to claim out of time.d.On September 21, 2019 when this matter was slated for hearing, the applicant’ s advocate Ms Moraa had a medical emergency to attend to and requested Mr Nyambega to hold his brief and request for adjournment which he did but that the court decline to grant the adjournment. That the claimant’s case proceeded for hearing and was closed on the same day.e.The applicant states that it is and has always been keen to prosecute its case to its logical conclusion. He added that the adjournment sought on the September 21, 2022 was the first one and thus urged this court to allow the application and give it a chance to defend this case.f.He stated further that the claimant will not suffer any prejudice if the application is allowed as judgement is yet to be delivered.
3.The application is supported by the affidavit of Andrew Maina, the advocate ceased of the conduct of this matter of behalf of the applicant, which is sworn on the October 5, 2022. The affidavit basically reiterated the grounds of the application.
4.The application is opposed by the claimant, Prof Fredrick Ogolla, who swore a replying affidavit on the October 26, 2022. According to the respondent, this case was mentioned in court on the June 23, 2022 where both parties were represented and hearing slated for September 21, 2022.
5.He avers that this matter had initially been mentioned before this court and the applicant failed to appear on several occasions, causing delay in the hearing and final disposition of this matter.
6.He also took issue with the fact there is no evidence to affirm the allegation that Mr Moraa’s young member was unwell on the very day the suit herein was proceeding for hearing, therefore that the reason for failing to proceed with hearing is unfounded.
7.He urged this court to disallow the application and proceed to deliver the judgement as earlier slated.
8.The application was disposed of by way of written submissions with the applicant filling on the November 7, 2022 and the respondent on the November 11, 2022.
Applicant’s Submissions.
9.The applicant identified three issues for determination; whether the applicant/ respondent should be granted leave to file their response to the memorandum of claim and the witness statements out of time; whether the applicant should be granted leave to cross examine the claimant and whether it should be granted leave to be heard on its case.
10.On the first issue, it was submitted that the applicant’s advocate had unforeseen emergency which made her seek for adjournment. He argued that section 95 of the Civil Procedure Act as read with order 50 rule 6 of the Civil Procedure Rules gives this court powers to enlarge time to allow for the filling of the defence and supporting documents therein. Moreover, that section 3(1) of Employment and Labour Relations Act, provides for objectives of this court to include, just, expeditious, proportionate and affordable resolution of disputes. To further reinforce that point, they cited the case of Vivian Muia v Mzoori Limited[ 2017] eKLR where this court held that;-
11.Also in Salome Maina v Chief Officer Dept of Education, Laikipia County Government [2018] eKLR, the court held that;-
12.On whether the applicant should be granted leave to cross examine the claimant, they relied on the case of Henry Wasike Tumbu V China Jiangxi International (Kenya) Limited [ 2017] eKLR where the court held that;-
13.It also relied on the case of Law Society of Kenya v Faith Waigwa & 8 others [2015] eKLR , where the court gave the importance of cross examining witnesses and held that;-
14.On that basis, the applicant urged this court to allow it cross-examine the claimant in order to bring clarity to the case before court to deliver justice for both parties.
15.On whether leave should be granted to defend this claim, the applicant urged this court to be persuaded by the principle of natural justice, ‘audi alterem partem’ and provisions of article 50 of the Constitution on the right to fair hearing and allow the application so that their case may be heard in court. To support this, he relied on the case of Douglas Wambua Mutula v Kenya Ports Authority [2020] eKLR where the court held that; -
16.In pleading with the court to allow the application, the applicant submitted that, it was the first time the matter was coming up for hearing and also that it was the first time, it sought for an adjournment, he thus prayed for the court to exercise its discretion and allow the application as prayed.
Respondent’s Submissions.
17.The respondent on the other hand submitted on only two issues; whether the application is merited and who should bear costs of the application.
18.On the first issue, the respondent relied on the Supreme Court decision in Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (Application 12 (E021) of 2021) [2022] KESC 3 (KLR) where the apex court gave the guiding principles with regards to applications for extension of time as follows;a.Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;b.A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;d.Whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there would be any prejudice suffered by the respondents if the extension was granted;f.Whether the application had been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
19.On that basis, the respondent submitted that the applicant had ample time to file a response to claim and supporting documents from 2019 when this suit was instituted. He argued that section 13(1) of the Employment and Labour Relations Court Rules, 2016 gives respondent 21 days to file the said response. Therefore, that there is inordinate delay on the part of the applicant and to allow this application will further delay this claim that has been in the system from 2019. To support this position, he relied on the case of Rayat Trading Co Limited V Bank of Baroda and Tetezi House Limited [2018] eKLR where the court held that; -
20.Similarly, that the preliminary objection raised by the applicant was dismissed on October 21, 2021 and the court directed the applicant herein to file their response to the claim within 14 days, which the failed. Therefore, that the excuse given for failing to file a defence is an afterthought.
21.The respondent also argued that the application herein is an omnibus application with a mongrel of prayers governed by different provisions of the law, practice and procedure and judicial principle and are incapable of any proper response or adjudication, making the application incurably defective and a candidate for dismissal. In this he relied on the case of Rajput v Barclays Bank of Kenya Limited and 3 others [2013] eKLR.
22.On costs of the application, the respondent submitted that costs of this application should be borne by the applicant and they suggested to be paid throw away costs of Kshs 50,000.
23.I have examined all the averments and submissions of the parties. The applicants have submitted that they have been willing to defend this case and requested the court to allow them file their defence out of time.
24.For the reason that a man should not be condemned unheard, I allow the application sought to allow the applicant respondents file their defence out of time and in any case within 3 days.
25.The respondent will be allowed to cross-examine the claimant.
26.The respondent will pay claimant’s thrown away costs of 20,000/= before the next hearing date.
27.Costs in the cause.
RULING DELIVERED VIRTUALLY THIS 1ST DAY OF DECEMBER, 2022.HON. LADY JUSTICE HELLEN WASILWAJUDGEIn the presence of:-Miss Lyonah holding brief for Maina for respondent/applicant – presentAwuor for claimant – presentCourt Assistant – Fred
