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ELRCDismissedELRC Cause, Kisumu (number not stated in judgment)· [2017] KEELRC 1956 (KLR)

Philip Otiende Adundo v Kisumu County Assembly Service Board & 5 others [2017] KEELRC 1956 (KLR)

Employment and Labour Relations Court
2 February 2017
5,511 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, Clerk of the Kisumu County Assembly Service Board, obtained ex parte interim injunctive orders from the duty judge in Nairobi on 22nd December 2016 restraining the respondents from suspending him, appointing a replacement Clerk, occupying his office, or interfering with his bank account mandates. Two applications came before Onyango J in Kisumu: the claimant's notice of motion dated 19th December 2016 seeking interlocutory and permanent injunctive orders, and the respondents' motion dated 5th January 2017 seeking discharge of the ex parte orders. The court heard both simultaneously, treating the second application as part of the response. The court held that an unsworn verifying affidavit is curable but an unsworn supporting affidavit is a nullity, leaving the application bare. Applying Giella v Cassman Brown, the claimant established no prima facie case: his suspension was a lawful disciplinary step by his employer, and the acts he sought to enjoin had already occurred, making the orders incapable of implementation. The court further found the claimant guilty of abuse of court process: he filed this suit while Kisumu ELRC Cause No. 367 of 2016, seeking identical orders, was still pending, and deliberately failed to disclose the prior proceedings and the declined orders to the duty judge, amounting to forum shopping. The claimant's application was dismissed. However, the court declined to strike out the suit, instead directing the claimant to apologize to the Court in writing before further action on the file. Judgment delivered on 2nd February 2017 at Kisumu.

Key legal issues

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01

Effect of unsworn supporting and verifying affidavits

Holding

The unsworn verifying affidavit could be cured by amendment, but the unsworn supporting affidavit could not be relied upon, leaving the application bare

Reasoning

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.

p. 9
02

Prima facie case for interlocutory injunction

Holding

No prima facie case with probability of success was established under the Giella principles

Reasoning

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.

p. 9
03

Abuse of court process and non-disclosure

Holding

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

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.Dismissal of the Claimant's application dated 19th December 2016
  2. 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. 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)

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A
  • Civil Procedure RulesOrder 40 Rules 1 & 2
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17
  • Oaths and Statutory Declarations Act
  • Public Finance Management Act
  • Kisumu County Assembly Service Act, 2014Section 12(1) and (3)
  • County Government ActSections 44(1) and 72(2)
  • Transition to Devolved Government Act

Cases cited (5)

  • J. P. Machira T/A Machira & Co. Advocates V. Wachira Waruru & Another
    [2007]eKLR
  • Giella V. Cassman Brown
  • JETLINK EXPRESS LIMITED v EAST AFRICAN SAFARIS AIR EXPRESS LIMITED
    NAIROBI CIVIL APPEAL NO.281 of 2009
  • BEINOIS v WIYLEY
    1973 S.A. 721 (SCA)
  • MAHATKUNO ROBLE & 4 OTHERS v PERMANENT SECRETARY MINISTRY OF DEFENCE & ANOTHER
    [2016]eKLR
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

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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, "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.