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ELRCDismissedNot stated in the judgment· [2019] KEELRC 945 (KLR)

Yash Karnik v Kuku Foods Limited [2019] KEELRC 945 (KLR)

Employment and Labour Relations Court
2 August 2019
MOMAUREEN ONYANGO
1,070 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to strike out a claim over missing page numbers, confirming technical defects can be fixed rather than end a case.

What this practically means

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Executive summary

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The Respondent filed a Notice to Strike Out the Claimant's Statement of Claim dated 25 May 2018, supported by an affidavit of its counsel, James Kamau Njeri, on the ground that the Statement of Claim breached Rule 14(1) of the ELRC (Procedure) Rules 2016 because it was neither paginated nor numbered in consecutively numbered paragraphs. The Respondent submitted that the defect prevented it from responding to the claim without risking admission of the averments, relying on pre-2010 authorities including Magunga General Stores v Pepco Distributors Ltd, Nuru Chemist Ltd v National Bank Ltd and D.T. Dobie & Co Ltd v Joseph Mbaria Muchina. The Claimant filed neither a reply nor submissions. The court, per Maureen Onyango J, noted that striking out pleadings is a draconian remedy of last resort, as held by the Court of Appeal in Nicholas Kiptoo Arap Korir Salat v IEBC. All the applicant's authorities predated the 2010 Constitution; thereafter, want of form is not a ground for striking out unless the pleading cannot be salvaged by amendment. The lack of numbering was a curable mere technicality, and striking out would offend Article 159(2)(d) of the Constitution and Section 20(1) of the ELRC Act. The court further found that the firm of Wangai Wanjohi Advocates, which filed the application, was not properly on record, its notice of change of advocates being unserved and defective, rendering the application incompetent. The application was struck out with costs on 2 August 2019.

Key legal issues

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01

Whether an unpaginated and unnumbered pleading should be struck out under Rule 14(1) ELRC (Procedure) Rules 2016

Holding

No - the defect is a mere technicality capable of rectification and striking out would breach the overriding objective

Reasoning

Rule 14(1) requires pleadings to be paginated and divided into consecutively numbered paragraphs. The Statement of Claim lacked page and paragraph numbers, but the court held this failure curable. Striking out is draconian and a last resort; the respondent would suffer no harm if the claim were paginated and numbered. Article 159(2)(d) and Section 20(1) of the ELRC Act require justice without regard to procedural technicalities. The claim should have been amended as earlier directed, but that did not justify striking it out.

p. 2
02

Whether counsel who filed the striking out application was properly on record

Holding

The firm of Wangai Wanjohi was not properly on record, rendering the application incompetent

Reasoning

KNOW ADVOCATES LLP was on record for the respondent since 4 June 2018. The notice of change of advocates filed by Wangai Wanjohi was not served on the advocates on record and did not state that it was coming on record in place of KNOW ADVOCATES LLP, merely giving an address for service. Consequently the firm was not on record at the time of filing the notice to strike out, rendering the application incompetent.

p. 2

Legal principles established

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  • Striking out pleadings is a draconian measure to be employed only as a last resort and in the clearest of cases
  • Deviations from form and procedure which do not go to jurisdiction, the root of the dispute, or occasion prejudice should not attract striking out
  • After the 2010 Constitution, want of form is no longer a ground for striking out pleadings unless they cannot be salvaged through amendment

Court orders

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  1. 1.The application for striking out is struck out with costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 14(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Employment and Labour Relations Court ActSection 20(1)

Cases cited (7)

  • Magunga General Stores v Pepco Distributors Limited
    [1987] eKLR
  • Nuru chemist Limited & another v National Bank Limited
    [2008] eKLR
  • D.T. Dobie & Company (Kenya) Limited -V- Joseph Mbaria Muchina and Another
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 6 Others
    [2013] eKLR
  • Augustino Mwai V. Okumu Ndede
    Nbi Civil Appeal No. 42 of 1995
  • Joseph Kinoti V. Aniceta Ndeti
    Nairobi Civil Appeal No. 130 of 1995
  • Samuel Wakaba V. Bamburi Portland Cement
    Civil Appeal No. 130 of 1995
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules 2016; Employment and Labour Relations Court Act, Section 20(1)

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, "Yash Karnik v Kuku Foods Limited [2019] KEELRC 945 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/945/eng@2019-08-02

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