University of Nairobi v George Mabele Sifuna [2021] KEELRC 279 (KLR)
The bottom line
#The court struck out an employment appeal application because it lacked a supporting affidavit, showing court procedure rules must be followed exactly.
What this practically means
#Executive summary
#Key legal issues
#Correct procedural form for interlocutory applications in the ELRC
The proper rule is Rule 17, which requires interlocutory applications to be by Notice of Motion heard in open court and supported by an affidavit served on the other party. The respondent's Chamber Summons under Rule 28(1)(g) without a Supporting Affidavit was incompetent and was struck out.
The court identified Rule 17 of the ELRC (Procedure) Rules, 2016 as governing interlocutory applications. Sub-rules 17(1) and 17(8) require a notice of motion supported by an affidavit served on the other party. The respondent filed a Chamber Summons with no Supporting Affidavit attached. The court held the omission was a material defect against the Rules, not a curable technicality, and the application had to be struck off for that reason alone, without reaching the merits of the want-of-prosecution plea.
Whether the appeal should be dismissed for want of prosecution
The court declined to determine the merits given the fatal procedural defect, but noted that Rule 16 permits dismissal where there is no action within one year, and observed that the delay was partly attributable to the COVID-19 court closures from 16th March 2020 and the late transmission of the file to the court on 12th March 2020.
The court observed that had it reached the merits, Rule 16 allows dismissal of a suit or appeal where there has been no action within one year. However, the appeal was only seized by the court on 12th March 2020, immediately before the Chief Justice's COVID-19 Practice Directions of 16th March 2020 closed courts. Courts only reopened partially in the last quarter of that year. The court expressed the expectation that the appellant, now aware of the respondent's agitation, would expedite the hearing of the appeal.
Legal principles established
#- An interlocutory application under the ELRC (Procedure) Rules, 2016 must be made by Notice of Motion supported by a Supporting Affidavit; an application filed as a Chamber Summons without a Supporting Affidavit is incompetent and not a curable technicality.
- An application without a Supporting Affidavit stands unsupported and must be struck out; the defect is material and cannot be cured by the court.
Court orders
#- 1.Chamber Summons dated 16th August, 2021 is struck out
- 2.No orders on costs
- On appeal from
- High Court
- null
- Jurisdiction invoked
- Appeal pending before the Employment and Labour Relations Court; application brought under Rule 28(1)(g) of the Employment and Labour Relations Court (Procedure) Rules, 2016 (held to be incompetent, proper rule being Rule 17)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "University of Nairobi v George Mabele Sifuna [2021] KEELRC 279 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/279/eng@2021-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.