Ngurari v Wells Fargo Limited (Cause 1278 of 2011) [2014] KEIC 145 (KLR) (Employment and Labour) (31 July 2014) (Ruling)

Ngurari v Wells Fargo Limited (Cause 1278 of 2011) [2014] KEIC 145 (KLR) (Employment and Labour) (31 July 2014) (Ruling) Simon Kiura Ngurari v Wells Fargo Ltd [2014] eKLR Neutral citation: [2014] KEIC 145 (KLR) Republic of Kenya In the Industrial Court at Nairobi Employment and Labour Cause 1278 of 2011 Nzioki wa Makau, J July 31, 2014 Between Simon Kiura Ngurari Claimant and Wells Fargo Limited Respondent Ruling 1.Before me is a Notice of Motion Application dated 23rdMay 2013 filed under certificate of urgency. TheApplication seeks the Court to set aside and/or review theCourt’s order issued on 30th April 2013 dismissing the Claimant’s suit for non-attendance. The Application wassupported by grounds on the face of the Motion as well asthe affidavit of the Claimant’s advocate sworn in support.In brief the affidavit deposed that the Claimant’s counselwent to Court 2 instead of Court 4 where the case waslisted for hearing as a result of “handwritten notes” onthe cause list exhibited at the notice board. TheRespondent was opposed to the Application and filed aReplying Affidavit on 19th May 2014. In the ReplyingAffidavit sworn by counsel for the Respondent it wasdeposed that the Claimant and his advocate were not inCourt on 30th April 2013 when the matter came up forhearing. It was also deposed that the Claimant’s counsel had not annexed the alleged Cause List with thehandwritten notes to show the cause was in Court 2 andhad that been the case even the Defendant’s advocateswould have been in Court 2 other than Court 4 where thematter was listed. 2.The Application was urged on 16th July 2014. Miss Ookourged the Application and submitted that counsel for theClaimant was misled by handwritten notes on the causelist which stated that the case would be heard in Courtno. 2 and on inquiry from the Clerk in Court 2 was toldthat the case was due to be heard in Court 4. Shesubmitted that failure to attend Court on that day wasnot intentional but was a great oversight beyond thecontrol of counsel as he had relied on the handwrittennotes on the cause list. She stated that the Claimant isinterested in pursuing the Claim and that it was not in theinterest of justice were he to be punished for mistake orerror on part of counsel. She relied on the case of LucyBosire v Kehancha Division Land Dispute Tribunal[2013] eKLR for the proposition that the discretionwhich the Court has in whether to set aside ex parteorder is meant to ensure there is no hardship on accountof excusable mistake or error. 3.Mr. Kimani for the Respondent was opposed and urgedthat the Court would be unwilling to punish a party forthe innocent or inadvertent mistake. That must beproved. He submitted that the Claimant was not in Courtwhether in Court 2 or Court 4 and he has not sworn anaffidavit to say so. Secondly that the said cause list containing the handwritten note had not been displayedto show the document misled either the advocate or theClaimant and no official of the Court had written a letteror swore an affidavit that they altered the cause list andput in their own handwriting. He submitted that theadvocate who held his brief went to the correct Court andif there was confusion it would have been to both not justone advocate. 4.Miss Ooko in her response stated that she agreed thefailure to attend was a grave mistake and the advocateshould have been diligent but mistake of counsel shouldnot be meted out and if that is allowed it will affect thecourse of justice. 5.In the case of Patel v EA Cargo Handling Services Ltd[1974] EA 75 the Court of Appeal per Duffus President ofthe Court stated thus:-“ _There are no limits or restrictions on the judge’sdiscretion except that if he does vary the judgment hedoes so on such terms as may be just. The main concernof the court is to do justice to the parties and the courtwill not impose conditions on itself or fetter the widediscretion given it by the rules.._........the principleobviously is that unless and until the Court haspronounced judgment upon the merits or by consent, itis to have power to revoke the expression of it’scoercive power where that has obtained only by afailure to follow any of the rules of procedure”(emphasis mine) 6.Further In the case of CMC Holdings v Nzioki [2004] 1KLR 173 the Court of Appeal considered the grant ofdiscretionary orders to set aside the learned judges ofappeal Tunoi, O’kubasu JJA, Onyango Otieno Ag. JA (asthey then were) held as follows:1)In an application before a court to set aside an ex parte judgment, the court exercises its discretion in allowing or rejecting the same. That discretionmust be exercised upon reasons and judiciously.2)On appeal from the decision, the appellate courtwould not interfere with the exercise of thediscretion unless such discretion was exercisedwrongly in principle or the Court acted perverselyon the facts.3)In law, the discretion on whether or not to set aside an ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as aresult of, among other things, an excusable mistakeor error.4)It would not be proper use of such discretion if the Court turns its back to a litigant who clearlydemonstrates such an excusable mistake,inadvertence, accident or error. Such an exercise ofdiscretion would be wrong in principle.5)In the instant case, the trial magistrate did notexercise her discretion properly when she failed toaddress herself to a matter which might have very well amounted to an excusable mistake visitedupon the appellant by its advocate.6)In an application for setting aside ex parte judgment, the Court must consider not only thereason why the defence was not filed or why theappellant failed to turn up for the hearing, but alsowhether the applicant has reasonable defencewhich is usually referred as whether the defence iffiled already or if a draft defence is annexed raisedtriable issues . 7.Clearly the law is not meant to shut out a party whocommits an inadvertent mistake or error. In the casebefore the Court it is amply clear that the Claimant wasneither in Court 2 or Court 4. No deposition has beenmade that he was present in any Court on that day readyfor the case. It is stated that the advocate was misled bywritten notes on the cause list yet no cause list wasattached to show the mistake. The Court is in agreementwith submissions that if there was a mistake then itwould have affected both parties and not just one. It isapparent that the failure to attend to the case wasdeliberate and not merely a mistake. 8.On the strength of the case of Lucy Bosire v KehanchaDivision Land Dispute Tribunal [2013] eKLR thediscretion which the Court has in whether to set aside exparte order or not is meant to ensure there is no hardshipon account of excusable mistake or error. The justice of this case does not demonstrate any excusable mistake orerror. In the premises the Court cannot exercise anydiscretion in favour of the Claimant. The Applicationdated 23rd May 2013 lacks merit and is dismissed withcosts to the Respondent.Orders accordingly. **DATED AND DELIVERED AT NAIROBI THIS 31 ST DAY OF JULY 2014****NZIOKI WA MAKAU****JUDGE**