Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Limited [2014] KEELRC 926 (KLR)

Industrial Court

10 March 2014

MMM. Mbaru

1,895 words in judgment

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The bottom line

Kenya's Industrial Court dismissed both sides' procedural applications, confirming Court of Appeal rules don't apply there and applications must match their supporting affidavits exactly.

What this practically means

Executive summary

Two applications were placed together for determination: the claimant's Notice of Motion dated 7th November 2013 seeking to restrain the respondent from appealing against the judgment of 16th September 2013 (which awarded the claimant Kshs.460,000.00 plus costs) and to strike out the Notice of Appeal filed out of time; and the respondent's Notice of Motion dated 26th November 2013 seeking stay of execution pending intended appeal. On the first application, the court held that the Industrial Court (Procedure) Rules govern, and where silent, other written laws applicable to the High Court apply, the Industrial Court being a Superior Court of Record. The Appellate Jurisdiction Act and the Court of Appeal Rules under which the claimant moved apply only to the Court of Appeal; applying them before the Industrial Court would pre-empt appeal proceedings not yet commenced. The claimant's application was therefore dismissed as premature. On the second application, the court found the substantive application named Jacqueline Mumbi Hinga as the supporting deponent but the affidavit on record was that of Brian Asin, which did not identify the application it supported. The connection between the application and its supporting facts was lost, a material defect not curable by the court; the application was bare and was struck out. The court made no orders as to costs. Both applications were thus unsuccessful, leaving the judgment of 16th September 2013 and the irregularities surrounding the Notice of Appeal unresolved on their merits.

Key legal issues

Whether the claimant's application to strike out the Notice of Appeal under the Court of Appeal Rules was competent before the Industrial Court

Holding

It was not; the Appellate Jurisdiction Act and its Rules apply only to the Court of Appeal and the claimant's application was premature

Reasoning

Proceedings before the Industrial Court are governed by the Industrial Court (Procedure) Rules and, where silent, by other written laws applicable to the High Court, the Industrial Court being a Superior Court of Record. The Appellate Jurisdiction Act and the Court of Appeal Rules apply only to proceedings before the Court of Appeal. Applying them in the Industrial Court would pre-empt appeal proceedings not yet commenced; the proper course was to invoke rules governing High Court proceedings.

p. 3

Whether the respondent's application for stay could stand where it was supported by an affidavit of a person other than the deponent named

Holding

It could not; the application was bare and was struck out

Reasoning

All applications must be supported by facts stated in an affidavit relating to the orders sought and grounds relied upon. The substantive application named Jacqueline Mumbi Hinga as deponent but the attached affidavit was by Brian Asin, which did not indicate which application it supported. The link between the application and the supporting document was lost; the missing supporting affidavit was a material defect not curable by the court.

p. 3

Legal principles established

The Appellate Jurisdiction Act and the Court of Appeal Rules apply to proceedings before the Court of Appeal and not to proceedings before the Industrial Court; striking out a Notice of Appeal from the Industrial Court must be sought under rules governing proceedings before the High Court
An application must be supported by the affidavit of the deponent named in it; a supporting affidavit by a different person disconnects the application from its supporting facts and is a material defect not curable by the court

Court orders

1.The claimant's application dated 7th November 2013 is dismissed
2.The respondent's application dated 26th November 2013 is struck out
3.No orders as to costs

Authorities

Legislation

Civil Procedure Actsection 3A
Court of Appeal RulesRules 42, 45, 75 and 84
Civil Procedure RulesOrder 42 Rule 6; Order 51 Rules 1 and 2
Industrial Court Procedure RulesRule 16
Appellate Jurisdiction ActNot specified

Cases cited (1)

Githae versus Nairobi City Commission
[1991] KLR 529

Jurisdiction invoked: Industrial Court (Procedure) Rules and inherent jurisdiction under section 3A of the Civil Procedure Act

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (1)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Victonell Academy Ltd v Mwangi (Employment and Labour Relations Appeal E023 of 2023) [2025] KEELRC 1847 (KLR)
[2025] KEELRC 1847 (KLR)25 Jun 2025applied

Cite this brief

Caselaw, "Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Limited [2014] KEELRC 926 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/926/eng@2014-03-10

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