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ELRCPartially AllowedCause No 155 of 2017· [2019] KEELRC 1138 (KLR)

Diana Gaceri Kigunda v Mombasa Continental Resort [2019] KEELRC 1138 (KLR)

Employment and Labour Relations Court
19 July 2019
1,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, acting in person, filed an application on 30th January 2018 seeking to have a special power of attorney donated to Benson Muriithi Kagai deemed duly filed, and leave to enlarge her claim and file an Amended Statement of Claim. The application was opposed by a Replying Affidavit sworn by Geoffrey Muema, which the court struck out as wholly defective because the deponent did not identify his relationship to the Respondent. On the power of attorney, 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 or confer a right of audience on the donee. Section 22 of the Employment and Labour Relations Court Act confines audience to parties in person, advocates, trade union officials, and specially authorised directors or employees of companies. Kagai, an Attorney-in-Fact and not an Attorney-at-Law, fell into none of these categories; the court noted he had successfully litigated his own claim against what appeared to be the same employer, but held that employees cannot represent fellow employees and that his attempt was irregular, illegal and capable of attracting criminal prosecution. Prayer 1 was rejected and the power of attorney expunged. However, the court found no reason to refuse leave to amend the Statement of Claim, there being no valid Replying Affidavit on record, and granted leave under Rule 14para 6, with corresponding leave to the Respondent to amend its Response within 14 days. Costs were awarded in the cause.

Key legal issues

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01

Whether an Attorney-in-Fact may represent a litigant in the Employment and Labour Relations Court

Holding

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.

Reasoning

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.

p. 1
02

Validity of the Replying Affidavit sworn by Geoffrey Muema

Holding

Struck off the record as wholly defective because Muema did not identify his relationship to the Respondent.

Reasoning

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.

p. 1
03

Whether the Claimant should be granted leave to amend her Statement of Claim

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Costs in the cause

Authorities

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Legislation

  • Advocates ActCap 16 (Laws of Kenya)
  • Employment and Labour Relations Court ActSection 22
  • Labour Relations ActNumber 14 of 2007
  • ELRC (Procedure) RulesRule 14[6]

Cases cited (3)

  • Theuri v Republic
    [1990] KLR
  • Khanjra & Another v Safaricom Limited
    [2012] e-KLR
  • Benson Muriithi Kagai v Kenya Equatorial Hotels Limited t/a Mombasa Intercontinental Resort Limited
    [2014] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court Act, including Section 22 on right of audience

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, "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.