Katungu v Attorney General (Cause 2142 of 2012) [2014] KEIC 141 (KLR) (10 January 2014) (Ruling)

Katungu v Attorney General (Cause 2142 of 2012) [2014] KEIC 141 (KLR) (10 January 2014) (Ruling) Margaret Ayuma Katungu v Attorney General [2014] eKLR Neutral citation: [2014] KEIC 141 (KLR) Republic of Kenya In the Industrial Court at Nairobi Cause 2142 of 2012 Nzioki wa Makau, J January 10, 2014 Between Margaret Ayuma Katungu Claimant and The Hon Attorney General Respondent Ruling 1.What is before the Court is the Respondent/Applicant’s Noticeof Motion dated 14th October 2013. The Application was filed under certificate of urgency. It seeks mainly the followingorders:-a.That pending the hearing and determination of the Application the Honourable Court be pleased to grant atemporary stay of execution of the Order given on 27thJune 2013.b.That the ex parte Order granted on 27th June 2013 bythe Honourable Justice Nzioki wa Makau be set asideand/or vacated. 2.The Application is supported by Grounds on the face of theMotion and the annexed affidavit of Lawrence MuriithiWaweru. The gist of the same are that theClaimant/Respondent was interdicted on 30th October 2010 onaccount of gross misconduct for having committed fraud,forgery and theft by servant. It was further averred in thepleadings that through misrepresentation of facts theClaimant/Respondent obtained the orders sought to be variedand/or vacated. 3.The Application is opposed by the Claimant/Respondent whofiled a Replying Affidavit on 30th October 2013. She deposedthat the Respondent/Applicant was duly served with theApplication of 12th June 2013 on 17th June 2013 for hearinginter partes on 27th June 2013. She deposed that theRespondent neither replied to the Application of 12th June2013 nor attended Court and the hearing proceeded interpartes as ordered on 12th June 2013. No explanation was givenfor the failure by the Respondent/Applicant. 4.The Respondent/Applicant was represented by Mrs. Okwarawho argued the application thus:- The Applicant sought thatthe orders granted on 27th June 2013 be vacated or set asideon grounds on the face of the Application in that the Claimantwas interdicted on allegations of fraud. The Claimant soughtthe lifting of interdiction and reinstatement in her Applicationand the main suit also sought the same orders. Mrs. Okwaraargued that the orders reinstated the Claimant yetinvestigations show she committed the offence. Counselsubmitted that the orders granted were obtained bymisrepresentation and compromised the suit and they areprejudicial to the Respondent. Regarding the failure to attendCourt, she deposed that she was on annual leave and thereason for failing to attend was an excusable mistake and thatthe mistake of counsel should not be visited on theRespondent. 5.Mr. Kitonga opposed the Application on behalf of theClaimant/Respondent. He submitted that the Application asconceived was misconceived as it was an application to setaside an order occasioned by the Respondent/Applicant’sfailure to attend the hearing of the Application. 6.The Respondent/Applicant premised the Application onSections 3 and 16 of the [Industrial Court Act](http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/Industrial_Court_Act__No._20_of_2011.pdf) as well as Rules16 and 27 of the [Industrial Court (Procedure) Rules](/akn/ke/act/ln/2010/78/eng@2022-12-31) 2010\. TheRespondent/Applicant was properly before Court and had tosatisfy the Court that the error, mistake or inadvertence wasdue to circumstances that would enable the Court exercisediscretion in favour of the Respondent/Applicant. In Shah v.Mbogo and Another (1967) EA 116, the Court held as follows:-“Applying the principles that the court's discretion to set asidean ex parte judgment is intended to be exercised to avoidinjustice or hardship resulting from accident, inadvertence, orexcusable mistake or error, but not to assist a person who hasdeliberately sought (whether by evasion or otherwise) toobstruct or delay the cause of justice.” 7.The reasons advanced for the failure to attend Court on 27thJune 2013 were prompted by the Claimant/Respondent’sReplying Affidavit filed in opposition to theRespondent/Applicant’s Notice of Motion Application dated14th October 2013. To my mind, this shows clearly that theRespondent/Applicant did not advance reasons until it wasthrust upon them. The reasons are captured in the FurtherAffidavit of the Counsel on record Culent Simiyu Lunyolo. It isdeposed that the said counsel was on leave thus the failure toattend. I on my part am not persuaded that was a sufficientreason for the failure to attend Court. The Attorney Generals’Chambers have very many State Counsel and the fact thatone State Counsel goes on leave does not mean there wouldbe no one to attend a case. I would cite the words of LordGriffith in Ketterman v Hansel Properties [1988] 1 AllER 38:“Legal business should be conducted efficiently. We can nolonger afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in amore leisured age. There will be cases in which justice will bebetter served by allowing the consequences of the negligenceof lawyers to fall on their own heads rather than allowing anamendment at a very late stage in the proceedings.” 8.The leisure pace of doing things as evinced in the matterbefore will not fly. If sufficient cause is shown during thehearing to follow that the suspension was merited,consequences will follow. That inquiry will proceed eventhough the Claimant/Respondent is on the payroll of the Government of Kenya. The upshot of the foregoing is that the Application to set aside and/or vacate my orders is notmerited and the same is dismissed with costs.It is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 10 TH DAY OF JANUARY 2014****NZIOKI WA MAKAU** _**JUDGE**_ *[EA]: East Africa law Reports