Kenya Game Hunting Union v Hire (Cause 299 of 2010) [2014] KEIC 153 (KLR) (14 January 2014) (Ruling)

Kenya Game Hunting Union v Hire (Cause 299 of 2010) [2014] KEIC 153 (KLR) (14 January 2014) (Ruling) Kenya Game Hunting Union v Glory Car Hire [2014] eKLR Neutral citation: [2014] KEIC 153 (KLR) Republic of Kenya In the Industrial Court at Nairobi Cause 299 of 2010 Nzioki wa Makau, J January 14, 2014 Between Kenya Game Hunting Union Claimant and Glory Car Hire Respondent Ruling 1The Respondent herein seeks unconditional leave to defend ongrounds that the Claimant never served process on the Respondent.For good measure the Respondent avers that the Claimant servedsomeone who is unknown to the Respondent and also that the twostamps on the notice received on 2nd November 2010 were suspect. 2.The Claimant is opposed and sought the dismissal of theRespondent/Applicant’s Application with costs. 3.The Notice of Motion Application seeks in the main the setting aside ofthe Judgment of the Court dated 22nd June 2011. The Grounds set outon the face of it are that the Respondent was not served with theHearing Notice and that the matter proceeded ex parte and judgmententered against the Respondent. Mr. Johnson Mutara deposes in theSupporting Affidavit that the Respondent filed and served aMemorandum of Appearance and Response in November 2012. Heswears that the Respondent was never served with the Hearing Noticeby the Respondent. 4.Mr. Ndolo for the Claimant/Respondent stated in opposition that theRespondent was served. It was urged that the Application should notbe allowed as the matter proceeded ex parte and the challenge is nowat the stage of execution. 5. 5The Court can set aside or vary its judgment on terms that are just.This discretion is unfettered and wide. In the case of Patel v EACargo Handling Services Ltd [1974] EA 75, the Court of Appealper Duffus President of the Court stated thus:-“There are no limits or restrictions on the judge’s discretionexcept that if he does vary the judgment he does so on suchterms as may be just. The main concern of the court is to dojustice to the parties and the court will not impose condition son itself or fetter the wide discretion given it by the rules..........the principle obviously is that unless and until theCourt has pronounced judgment upon the merits or byconsent, it is to have power to revoke the expression of it’scoercive power where that has obtained only by a failure tofollow any of the rules of procedure” (emphasis mine)6. The case of the Respondent hinges on non-service of a Hearing Notice.The depositions and pleadings do not advert to the service ofsummons. Indeed paragraph 6 of the Affidavit of Johnson Matara isclear. The Claimant filed affidavits of service on two occasions bearingstamps of the Respondent. The Respondent has not availed to Courtthe correct stamp in order to prove the stamps on the Notices werenot from the Respondent. In the matter before me, there is no doubtthat the Respondent was aware of the suit and failed due toinadvertence or willfully to participate in the suit and only seeks to doso now that the matter is at execution stage. I will decline to exercisemy discretion in favour of the Respondent. No grounds have been advanced to warrant this Court to disturb the decision of Madzayo J.(as he then was) made on 22nd June 2011.7. I dismiss the Notice of Motion dated 28th October 2013 with costs tothe Claimant. 7It is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 14 TH DAY OF JANUARY 2014****NZIOKI WA MAKAU****JUDGE**