Bernard Levoywa v Salina Transporters [2014] KEELRC 1398 (KLR)

REPUBLIC OF KENYA IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI CAUSE NO 2484 OF 2012 BERNARD LEVOYWA....................................................................CLAIMANT VS SALINA TRANSPORTERS........................................................RESPONDENT RULING 1. This ruling flows from the Respondent's application dated 23rd June 2014 seeking orders for stay of execution and setting aside of the award of this Court dated 19 th May 2014. The application which is supported by the affidavit of Stephen Gitonga is based on the following grounds: a. That a hearing notice was served upon the Respondent's Advocates on 2 nd December 2013 but due to a mistake, the hearing date was not entered in the Advocate's diary; b. That the non attendance on 2nd April 2014 which was inadvertent was the result of an honest and excusable error on the part of the Advocate's staff; c. That the Respondent is an innocent party who has been severely prejudiced. 2. In the submissions filed on behalf of the Respondent on 2nd September 2014, it is submitted that the mistake occasioned by Counsel for the Respondent was genuine and not meant to prejudice the Claimant. Further, Counsel for the Claimant did not serve the judgment notice as required by law. 3. In a replying affidavit sworn by the Claimant on 8th July 2014, it is deponed that Counsel for the Respondent was properly served with a hearing notice in good time. Failure to attend Court on the hearing date therefore amounted to professional negligence on the part of the Respondent's Counsel which should not be visited on the Claimant. According to the Claimant, the Respondent's application to set aside a validly entered judgment is an attempt to delay justice. 4. Setting aside of ex parte judgments is a matter of discretion which is exercised on a balance of the right of a successful claimant to reap the fruits of an award with the right of a defendant to have their day in court. The Court was referred to the case of Edwin Oduor Chacha Vs Dr. Philisters Onyango and Another [2013] where Onyango J reiterated the principles for setting aside ex parte judgments. 5. In this regard, the discretion granted to the Court is to be exercised in a manner that avoids injustice arising from an accident, inadvertence or excusable mistake. It is not intended to aid a party who deliberately sets out to delay justice. In exercising its discretion, the Court is called upon to consider the facts and circumstances of each case and to inquire whether the party who holds the award can reasonably be compensated for the delay caused by an award of costs. Ultimately, to deny a party the right to be

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