Kenya Airways PLC v Cleopatra Nazare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/218/2023
HARARE, 15 MAY 2023 & 18 JULY 2023
CASE NO LC/H/1196/22
In the matter between:-
KENYA AIRWAYS PLC
APPLICANT
CLEOPATRA NAZARE
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/218/2023

HARARE, 15 MAY 2023 & 18 JULY 2023
CASE NO LC/H/1196/22

In the matter between:-

KENYA AIRWAYS PLC
APPLICANT

CLEOPATRA NAZARE
RESPONDENT

Before the Honourable Kudya J

For the Applicant
S. Mbauya (Legal Practitioner)

For the Respondent
C. Chisasa (Unionist)

KUDYA, J:

This is an application for leave to appeal against the decision of this court where it ruled that points in limine raised by the respondent were well placed and consequently struck off the roll the application for rescission of judgement.

The background to the matter is that the employee approached the Labour Court on a damages claim against the employer despite the fact that the parties had entered into an agreement where they had settled their labour dispute vis what the employer owed the employee. When the matter was set down for hearing the employer defaulted giving rise to a default judgement in favour of the employee. The employer applied for rescission of the default judgement but its application was saddled with irregularities which the employee raised as points in limine. The points were to the following effect:

1. Employer’s heads of argument were out of time and no condonation had been sought to regularise the anomaly.
2. Application for rescission of judgement was out of time.
3. There was no assumption of agency by the employer’s lawyers


4. A wrong party had approached the court on rescission of judgement. The default judgement was against Kenya Airways Limited yet the application for rescission was filed by Kenya Airways PLC.

The rescission application was struck off the roll on account of the success of the points in limine referred to above. The applicant is unhappy with the striking off order hence the instant application for leave to appeal where it intends to appeal the striking off order.

It is settled that it is undesirable for appealing or seeking a review of interlocutory proceedings See **NMB Bank v Mushaya SC -164-21.** The reason for this principle is simply that there will never be an end to cases if a case is repeatedly subject to appeal or review on every point where the parties differ. It simply delays the conclusion of the matter on the merits. Such a scenario is presented by the instant application where in the court’s view the ends of justice would have been achieved by putting right the anomalies which gave rise to the striking off order than to appeal the same thus lengthening their conclusion of the matter on its merits See also **Mapondera v Freda Rebecca SC 81-22** on the undesirability of handling matters in a technical fashion.

Turning to the application before the court it is noteworthy that the parties have not given up on their raising technical objections thus compromising the conclusion of the matter on its merits. Being that as it may the points are dealt with below.

In the instant matter the respondent says the applicant should have resorted to practice direction 3 to put right the omissions which gave rise to the striking off order instead of appealing. The court agrees with the respondent that such an approach would have been in sync with the principle of finality to litigation. The court however hastens to note that the directive notwithstanding it does not take away the party’s right of appeal where the party feels his matter has not been handled properly by a lower tribunal. In the result the court is satisfied that even though it is undesirable to appeal the striking off order the applicant is still within its rights to want to appeal it. The point therefore fails.

The second point is that applicant is barred for failing to file its heads of argument on time and not seeking condonation for that. In its address the applicant stated simply that it adhered to its application and heads. It made no mention or whatsoever of its delay in the heads thus creating the impression that the submission in the respondent’s heads on that note was with foundation. The court therefore accepts that in the absence of condonation the applicant’s heads are not properly before the court. Being that as it may the court is of the view that since the founding affidavit spells out clearly what applicant is seeking there would be no harm in relying on that only for the conclusion of the matter. This is so if regard is had to the fact that heads of argument are not pleadings but only meant to set out the legal exposition of a matter. To that extent even without heads a matter can still be concluded on the basis of the pleadings. In the result even though it is clear that the heads in the matter at hand were out of time it can still be concluded on the basis of the founding papers. The final point taken is that no point of law is made out by the intended appeal grounds. See **Kunonga v CPCA SC 646/15**. In the case at hand the applicant impugns the factual findings of the court made vis the points *in limine* which were raised by the respondent. It need be noted that all the conclusions which the court arrived at were backed by what was contained in the papers placed before it. It was a fact that the applicant’s heads were out of time and the excuse of administration glitches cited was insufficient for the court to lift the bar which operated against the applicant.

It was conceded that there was no assumption on file yet the court required the same per its rules. It was also apparent that the default order was against Kenya Airways Limited. The issue of whether PLC and Ltd could be interchanged was therefore of no moment in the matter.

In the matter therefore all the issues addressed by the court were factual and clearly do not raise points of law wanting of the Supreme Courts adjudication. If the court is not correct in its conclusions on the points in limine it will proceed to deal with the merits of the leave to appeal. Tenets for a leave to appeal applications are settled See **CMED v Dombodzvuku SC-31-12**.

In the case at hand it needs be noted that indeed applicant was barred in the rescission application and it failed to convince the court to uplift the bar. It was given a chance to do so but failed to convince the court that same had to be lifted. There is thus no issue there worthy of proceeding to the Supreme Court. The issue of the application for rescission being out of time has already been stated above that using the deeming clause the applicant was out of time. It was therefore not enough for applicant’s lawyer to just say so that it received the judgement later so the court should just believe his mere say so contrary to the deeming clause. On the assumption of agency the law is peremptorily couched hence such was obliged to be on file. Its absence rendered the application to be struck off. Finally, whether PLC and Ltd could be interchanged the crux of the matter is that judgment had been given against Kenya Airways Limited. It was not asking for too much to expect that same entity to seek rescission. The substitution of the application by Kenya Airways PLC thus stand in the way of the relief that was sought. The court is satisfied that an appeal would not serve any purpose to deal with issues which are patently clear. In the ultimate the court is satisfied that no good case for leave to appeal has been made out. Leave is accordingly denied.

IT IS ORDERED THAT

Application for leave to appeal being without merit it be and is hereby dismissed. Each party bears own costs.

Coglan Welsh & Guest, Applicant’s Legal Practitioners
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