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ELRCPartially AllowedPetition No. 86 of 2017· [2018] KEELRC 2296 (KLR)

Okiya Omtatah Okoiti v Ministry of Health,Public Service Commission,Attorney General,Hezekiah Chepkwony & Pius Wanjala (Petition 86 of 2017) (Employment and Labour) [2018] KEELRC 2296 (KLR)

Employment and Labour Relations Court
13 March 2018
RSRadido Stephen
1,330 words in judgment
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The bottom line

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Kenya's Employment Court deleted a government affidavit sworn by the wrong person, refused to let officials replace it, and pushed the case forward.

What this practically means

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Executive summary

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This interlocutory ruling (Ruling No. 2) by Radido Stephen J in the Employment and Labour Relations Court at Nairobi arises from a petition by Okiya Omtatah Okoiti alleging that the Ministry of Health and the Public Service Commission violated the Constitution by failing to take disciplinary action against Dr. Hezekiah Chepkwony and Dr. Pius Wanjala, and that the two doctors created a hostile work environment at the National Quality Control Laboratory. The matter came before the Court on an application for joinder of the National Quality Control Laboratory as an Interested Party. The 1st to 3rd Respondents filed a replying affidavit in opposition, but it was deposed by a person other than the one named therein. State Counsel for the 1st to 3rd Respondents orally applied to withdraw the affidavit and substitute one sworn by the correct person; the Petitioner urged expungement instead, while the 4th and 5th Respondents objected, terming the request an afterthought and a delay tactic. The Court observed that serial applications had become a tactic of choice threatening proportionate and expeditious determination of the Petition. It held the affidavit to be a false affidavit, expunged it from the record, and refused leave to replace it, while allowing the 1st to 3rd Respondents to address the Court on the legal questions raised by the joinder. The joinder application was directed to proceed to hearing forthwith, with costs in the cause.

Key legal issues

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01

Treatment of an affidavit deposed by the wrong person

Holding

The affidavit was a false affidavit and was expunged from the record; the State was not permitted to replace it

Reasoning

The 1st to 3rd Respondents had indicated an intention to oppose the joinder application but filed a replying affidavit sworn by a person other than the one named therein. The Court treated this as a false affidavit warranting expungement. Although State Counsel sought to withdraw it and file a correct one, and the 4th and 5th Respondents objected as the request came after their challenge, the Court refused replacement, noting parties alleging falsity should pursue a separate cause without derailing the Petition.

p. 3

Legal principles established

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  • A replying affidavit sworn by a person other than the one named therein is a false affidavit which the Court will expunge from the record
  • A party may not withdraw and replace a false affidavit once its falsity has been exposed

Court orders

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  1. 1.The replying affidavit sworn by the wrong person is expunged from the record
  2. 2.The request by the 1st to 3rd Respondents to replace the replying affidavit is refused
  3. 3.The application for joinder of the National Quality Control Laboratory as an Interested Party proceeds to hearing forthwith
  4. 4.The 1st to 3rd Respondents may address the Court on the legal questions implicated by the joinder
  5. 5.Costs in the Cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3(1), 10(1) & (2)(a) & (c), 19, 20, 22(1) & (2)(a), 23, 27, 41(1), 47, 73, 75(1), 162(2)(a), 165(5)(b), 232(1)(a),(d),(e),(f) & 2, 258(1) & (2), 259(1)
Jurisdiction invoked
Articles 19, 20, 22(1) & (2)(a), 23, 162(2)(a), 165(5)(b) and 258(1) & (2) of the Constitution of Kenya, 2010

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, "Okiya Omtatah Okoiti v Ministry of Health,Public Service Commission,Attorney General,Hezekiah Chepkwony & Pius Wanjala (Petition 86 of 2017)  (Employment and Labour) [2018] KEELRC 2296 (KLR)", Case Analysis (2018). Petition No. 86 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2296/eng@2018-03-13

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