Diana Gaceri Kigunda v Mombasa Continental Resort [2019] KEELRC 1138 (KLR)
The bottom line
#A Kenyan employment court ruled a power of attorney cannot let a non-lawyer argue your case in court, though the claimant could still amend her pleadings.
What this practically means
#Executive summary
#Key legal issues
#Whether an Attorney-in-Fact may represent a litigant in the Employment and Labour Relations Court
No. The power of attorney does not confer a right of audience; the donee must be an admitted advocate with a practising certificate, a trade union official, or fall within Section 22 of the ELRC Act.
The court applied Theuri v Republic and Khanjra v Safaricom, holding that a power of attorney does not permit a litigant to appoint an unqualified person to act as advocate. Kagai is not an advocate, not a trade union official, and cannot represent fellow employees. To represent the Claimant he would need to qualify under the Advocates Act or be appointed under the Labour Relations Act as a trade union official.
Validity of the Replying Affidavit sworn by Geoffrey Muema
Struck off the record as wholly defective because Muema did not identify his relationship to the Respondent.
The deponent failed to state his capacity or interest in relation to the Respondent, leaving the affidavit without foundation; the court therefore disregarded it entirely when considering the opposition to the Application.
Whether the Claimant should be granted leave to amend her Statement of Claim
Yes. Rule 14para 6 permits amendment after closure of pleadings with leave of Court; the Claimant having filed in person and no valid Replying Affidavit opposing, leave was granted with corresponding leave to the Respondent.
The court found no foundation for rejecting the amendments since the only opposing affidavit was struck out. It exercised its discretion under Rule 14para 6 to allow the amendment and granted the Respondent corresponding leave to amend its Response within 14 days.
Legal principles established
#- A power of attorney does not confer on the donee the right to appear and plead the donor's case; only qualified advocates, parties in person, trade union officials, or specially authorised directors/employees have audience under Section 22 of the Employment and Labour Relations Court Act
- An Attorney-in-Fact is a mere agent, not an Attorney-at-Law qualified to practise law
- Employees are not permitted to represent fellow employees in Court under Section 22 of the Employment and Labour Relations Court Act
Court orders
#- 1.Prayer [1] of the Application filed on 30th January 2018 rejected, and the power of attorney filed by the Claimant expunged from the record
- 2.The Claimant granted leave to amend her Statement of Claim, and the Draft Amended Statement of Claim deemed duly filed upon payment of the requisite fees
- 3.The Respondent at liberty to file an Amended Statement of Response within 14 days of receiving the Amended Statement of Claim duly filed
- 4.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court Act, including Section 22 on right of audience
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diana Gaceri Kigunda v Mombasa Continental Resort [2019] KEELRC 1138 (KLR)", Case Analysis (2019). Cause No 155 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1138/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.