Jeremiah Makore Wetende & 2 others v Population Services Kenya & another [2020] KEELRC 124 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Competency of the supporting affidavit
On the face of the record the affidavit appeared commissioned, and the Court lacked sufficient facts to reject it on the font and commissioning objections.
The Court examined the supporting affidavit and found on its face that it bore commissioning by a Commissioner for Oaths. Absent further depositions or interrogation, the objections based on the deponent allegedly not appearing before a Commissioner for Oaths and the use of different fonts could not sustain rejection of the affidavit.
Sealing of exhibits under Rule 9 of the Oaths and Statutory Declarations Rules
The unsealed exhibits were expunged, leaving the application bare.
Rule 9 requires exhibits to be marked and sealed. Relying on a chain of High Court authorities, the Court found the requirement mandatory and that non-compliance leads to expunging of non-compliant exhibits. The Respondents' exhibits did not conform, and their expunging left the application unsupported.
Inordinate delay in filing the application
The explanation that the court file was unavailable was unconvincing as there was no correspondence complaining of the unavailability.
The application was brought over one year after judgment. Although the Respondents blamed the file's presence in the typing pool or before the Deputy Registrar, there was no single letter to the Deputy Registrar complaining of non-availability for filing purposes. The Court therefore rejected the explanation.
Substantial loss
The Respondents did not demonstrate substantial loss; lack of gainful employment did not render the Claimants persons of straw.
Relying on the ex parte Wananchi Group decision, the Court held that substantial loss must be demonstrated clearly. Although the 1st Claimant admitted he was not in gainful employment, he exhibited a title deed showing ownership of property, and two other Claimants were in business or farming. The Respondents showed nothing beyond the lack of employment.
Validity of the decree
The decree reflected the judgment and statutory deductions need not appear in it; no irregularity affected the execution.
While good practice envisages submission of a draft decree for approval, responsibility for ensuring the decree reflects the judgment rests with the Registrar/Deputy Registrar. The decree issued complied with the judgment. Statutory deductions under section 49 of the Employment Act should be implemented by the judgment debtor when making payment, with returns made to tax authorities.
Validity of the Notice of Appeal
Whether the error in indicating service on the wrong advocate firm invalidated the Notice of Appeal is a matter for the Court of Appeal.
The Notice of Appeal indicated it would be served on Situma & Co. Advocates whereas the advocate on record was Hammerton Maloba & Co. Advocates. The Court declined to determine the competence of the Notice of Appeal, holding that the question falls within the jurisdiction of the Court of Appeal.
Legal principles established
#- Rule 9 of the Oaths and Statutory Declarations Rules is mandatory; exhibits not marked and sealed must be expunged from the record.
- An applicant for stay must demonstrate substantial loss clearly in the supporting affidavit; it is not sufficient to merely state that the decretal sum is large.
- The responsibility of ensuring that the decree reflects the judgment of the Court rests on the Registrar/Deputy Registrar, and statutory deductions need not be included in the decree.
Court orders
#- 1.The Motion filed in Court on 2 November 2020 was dismissed with costs to the Claimants
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the consolidated causes and an application for stay of execution pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Makore Wetende & 2 others v Population Services Kenya & another [2020] KEELRC 124 (KLR)", Case Analysis (2020). ELRC Causes Nos. 254 and 255 of 2016 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/124/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.