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ELRCOtherNot stated in the judgment· [2021] KEELRC 279 (KLR)

University of Nairobi v George Mabele Sifuna [2021] KEELRC 279 (KLR)

Employment and Labour Relations Court
25 November 2021
835 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The respondent, George Mabele Sifuna, filed a Chamber Summons dated 26th August 2021 under Rule 28(1)(g) of the Employment and Labour Relations Court (Procedure) Rules, 2016, seeking dismissal of the appellant's appeal with costs for want of prosecution and release of the deposited security. He contended that although the Memorandum of Appeal and Record of Appeal had been filed in 2016 and 2019 respectively, no steps had been taken to prosecute the appeal. The appellant, through advocate Allan George Njogu Kamau, attributed the delay to the pendency of related appeals in the High Court (Civil Appeal No. 41 of 2016 and Civil Appeal No. 503 of 2017), requests for transmission of the file, an allocated hearing date falling on a public holiday, COVID-19 court closures from March 2020, and the late discovery that the file had been transmitted to this court, which seized the appeal on 12th March 2020. The court held that the proper rule governing interlocutory applications was Rule 17 of the ELRC (Procedure) Rules, 2016, which requires applications to be brought by Notice of Motion supported by a Supporting Affidavit served on the other party. The respondent's Chamber Summons, filed without a Supporting Affidavit, was held to be fatally defective - a material defect against the Rules, not a curable technicality. Without reaching the merits (including the possibility of dismissal under Rule 16 for inaction within one year), the court struck out the Chamber Summons, noting the appellant should now expedite the hearing of the appeal. No orders on costs were made.

Key legal issues

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01

Correct procedural form for interlocutory applications in the ELRC

Holding

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.

Reasoning

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.

p. 2
02

Whether the appeal should be dismissed for want of prosecution

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Chamber Summons dated 16th August, 2021 is struck out
  2. 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

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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, "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.