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ELRCDismissedNot stated (Industrial Court cause; Notice of Motion dated 11th June 2013)· [2013] KEELRC 852 (KLR)

John Gachau Gitonga v Miss Nduta Mbile [2013] KEELRC 852 (KLR)

Industrial Court of Kenya
1 October 2013
DMD.K. Njagi Marete
1,640 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed a worker's application to revive a Kshs.498,228 award because he filed it without a supporting affidavit, making it fatally defective.

What this practically means

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Executive summary

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The Claimant, John Gachau Gitonga, moved the Industrial Court by Notice of Motion dated 11th June 2013 seeking review, uplifting and setting aside of orders made on 8th May 2013 by Justice D.J. Njagi Marete, which had set aside an award of 28th August 2012 in his favour and given the respondent 14 days to appeal. The Claimant, appearing in person, sought leave to execute the decree of Kshs.498,228/35, contending the respondent had never filed an appeal within the 14 days granted. The respondent opposed the application through grounds of objection and a notice of preliminary objection, arguing that the application was incompetent, unsupported by any affidavit, failed to attach the order sought to be reviewed, did not satisfy the conditions for review, and was an abuse of process since the proper remedy was an appeal. Counsel for the respondent relied on Macdonald v Ngumbi & another [2004] eKLR on affidavit requirements. The court found that although the motion was purportedly supported by an affidavit of the Claimant, no such affidavit was on record, and that the application failed to satisfy the review conditions under rule 32 of the Industrial Court (Practice) Rules, 2010 and Order 45 of the Civil Procedure Rules. The application was dismissed with costs to the respondent on 1st October 2013.

Key legal issues

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01

Effect of absence of a supporting affidavit on a Notice of Motion

Holding

The application is totally defective and cannot stand where no affidavit in support is on record

Reasoning

The court noted that the Notice of Motion was purportedly supported by an affidavit of John Gachau Gitonga but no such affidavit was annexed or on record. Relying on Order 19 rules 3 and 5 of the Civil Procedure Rules and the authority in Macdonald v Ngumbi, the court held that without an affidavit laying down the grounds and evidence, the application collapses at the onset.

p. 2
02

Compliance with conditions for review

Holding

The application failed to satisfy the review conditions under rule 32 of the Industrial Court (Practice) Rules, 2010 and Order 45 of the Civil Procedure Rules

Reasoning

The respondent demonstrated that the applicant had not established new and important evidence, had not attached the order sought to be reviewed, and had filed the application with unreasonable delay after thirty days. The court agreed the application did not meet the express conditions for review and was an abuse of process.

p. 4

Legal principles established

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  • An application not supported by a compliant affidavit is fatally defective and cannot stand
  • An application failing the review conditions is frivolous, vexatious and an abuse of court process

Court orders

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  1. 1.The Notice of Motion dated 11th June 2013 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Business Names ActCap. 499 Section 14(2)
  • Employment Act2007, section 74; Legal Notice No. 24 - The Regulation of Wages (Protective Security Services) Order 1988
  • Civil Procedure RulesOrder 51 rules 4 and 13(2); Order 19 rules 3 and 5; Order 45
  • Oaths and Statutory Declarations ActSection 5, Chapter 15
  • Industrial Court (Practice) RulesRule 32, 2010

Cases cited (1)

  • Macdonald Vs Ngumbi & another
    [2004] eKLR
Jurisdiction invoked
Industrial Court (Practice) Rules, 2010; Industrial Court original jurisdiction over employment claims

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Gachau Gitonga v Miss Nduta Mbile [2013] KEELRC 852 (KLR)", Case Analysis (2013). Not stated (Industrial Court cause; Notice of Motion dated 11th June 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/852/eng@2013-10-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.