Philip Otiende Adundo v Kisumu County Assembly Service Board & 5 others [2017] KEELRC 1956 (KLR)
The bottom line
#A Kisumu employment court dismissed a suspended County Assembly Clerk's injunction bid, ruling unsworn affidavits are worthless and hiding prior suits from the court is abuse of process.
What this practically means
#Executive summary
#Key legal issues
#Effect of unsworn supporting and verifying affidavits
The unsworn verifying affidavit could be cured by amendment, but the unsworn supporting affidavit could not be relied upon, leaving the application bare
The court distinguished between a verifying affidavit, curable by filing a supplementary one per J.P. Machira, and a supporting affidavit. An unsworn affidavit is a nullity; without it the application lacked the facts and documents on which the ex parte orders had been granted, and the claimant made out no case independently of it.
Prima facie case for interlocutory injunction
No prima facie case with probability of success was established under the Giella principles
The claimant, an employee of the Kisumu County Assembly Service Board, had been suspended to allow investigations into allegations under the Public Finance Management Act. The Board has the legal mandate to discipline him and suspension is part of that process; if absolved he would be reinstated and paid. Further, the injuncted acts had already occurred, making the orders incapable of implementation.
Abuse of court process and non-disclosure
The claimant abused court process by filing a duplicate suit while ELRC Cause No. 367 of 2016 was pending, and deliberately failed to disclose to the duty judge that similar orders had been declined in Kisumu
The pleadings in this suit were signed on 19th December 2016 while Cause No. 367 of 2016 was pending, and the withdrawal letter was filed on 20th December 2016, the same date the present claim was filed. The duty judge in Nairobi was never told of the prior suit in which similar interim orders had been refused. The ex parte orders were therefore obtained through deliberate non-disclosure and forum shopping.
Legal principles established
#- An unsworn affidavit is not an affidavit and cannot be relied upon to support an application
- An unsworn verifying affidavit can be cured by filing a supplementary verifying affidavit rather than striking out the suit
- An injunction cannot issue to arrest an action that has already been taken
- Filing multiple suits on the same facts, and non-disclosure of material facts to obtain ex parte orders, constitute abuse of court process
Court orders
#- 1.Dismissal of the Claimant's application dated 19th December 2016
- 2.The Claimant directed to apologize to the Court in writing for abusing the Court system before any other action can be taken on the file
- 3.The interim orders granted on 22nd December 2016 effectively fall away with dismissal of the 1st application (the 2nd application treated as part of the response)
- Jurisdiction invoked
- Sections 1A, 3A of the Civil Procedure Act; Order 40 Rules 1 & 2 Civil Procedure Rules; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Otiende Adundo v Kisumu County Assembly Service Board & 5 others [2017] KEELRC 1956 (KLR)", Case Analysis (2017). ELRC Cause, Kisumu (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1956/eng@2017-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.