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ELRCOtherNot stated in extract· [2019] KEELRC 1100 (KLR)

Nahashon Oywa Amanga v Board of Management Rift Valley Institute of Science and Technology [2019] KEELRC 1100 (KLR)

Employment and Labour Relations Court
28 March 2019
1,068 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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An employment claim was struck out in Nakuru because its verifying affidavit was undated and commissioned by a non-advocate—a fatal paperwork failure.

What this practically means

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Executive summary

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The claimant filed a Memorandum of Claim on 23 February 2016; the respondent filed a Response and Counter-claim on 20 June 2016. During hearing on 18 March 2019, the claimant testified under oath that although he signed the Verifying Affidavit, he never appeared before the named commissioner for oaths, Elias Ngugi Ng'ang'a Advocate, having signed his documents before his own advocates, M/S Ndeda & Associates. The Verifying Affidavit on record was undated. The respondent submitted that the claim was unverified, that the named commissioner was not on the Roll of Advocates, and that the suit should be dismissed as incompetent. The court's due diligence confirmed no such advocate was registered; the closest match was Nganga Ngugi Elias (deceased, died 17 August 2016), who practised in Nairobi under E. N. Nganga & Co. Advocates, whereas the affidavit gave a Nakuru address. The court held that section 5 of the Oaths and Statutory Declarations Act is mandatory, requiring the jurat to state the place and date of the oath, and that commissioning by the claimant's own prosecuting advocate was irregular and a conflict of interest. The undated affidavit commissioned by a non-advocate was a fundamental flaw going to the root of the suit, not curable under Article 159, following Stephen M Mogaka v IEBC. The Memorandum of Claim was struck out, but the suit remains alive for the counter-claim and response thereto. No costs order appears in the extract.

Key legal issues

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01

Commissioning of Verifying Affidavit

Holding

The Verifying Affidavit was incurably defective: it was undated and commissioned by a person not on the Roll of Advocates, and the claimant swore he never appeared before that person

Reasoning

The court conducted due diligence and found no advocate named Elias Ngugi Ng'ang'a on the Roll of Advocates; the only similar name was a deceased advocate who practised in Nairobi, not Nakuru. The claimant testified he signed the affidavit before his own advocate, not a commissioner for oaths, which the court held to be irregular and a conflict of interest, offending the Oaths and Statutory Declarations Act.

p. 2
02

Whether the defect is a mere technicality

Holding

The defect is not a curable technicality and Article 159 does not cure it; it goes to the root of the suit

Reasoning

Relying on Stephen M Mogaka v IEBC, the court held that non-compliance with the mandatory provisions on commissioning of affidavits is not a defect in form or a technical irregularity but one that is incurably defective, as it goes to the root of the substantive issue before the court.

p. 2

Legal principles established

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  • Section 5 of the Oaths and Statutory Declarations Act is mandatory: a commissioner for oaths must state truly in the jurat the place and date the oath was taken, and an undated affidavit commissioned by a non-advocate is incurably defective and cannot be saved by Article 159

Court orders

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  1. 1.The Memorandum of Claim is struck out for want of a proper Verifying Affidavit
  2. 2.The suit shall remain alive only for purposes of the counter-claim and response to the same

Authorities

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Legislation

  • Advocates ActSection 14
  • Oaths and Statutory Declarations ActSection 5
  • Constitution of Kenya, 2010Article 159

Cases cited (1)

  • Stephen M Mogaka versus Independent Electoral & Boundaries Commission (IEBC) & 2 others
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the Memorandum of Claim (statutory provision not expressly cited in extract)

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, "Nahashon Oywa Amanga v Board of Management Rift Valley Institute of Science and Technology [2019] KEELRC 1100 (KLR)", Case Analysis (2019). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1100/eng@2019-03-28

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