Law Society of Kenya v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Co-operatives & Attorney General; Sammy Kipkoech Keter 7 3 others (Interested Parties) [2021] KEELRC 285 (KLR)
The bottom line
#A Kenyan employment court struck out a board reinstatement application because it cited the wrong supporting affidavit, showing affidavit defects can sink entire motions.
What this practically means
#Executive summary
#Key legal issues
#Validity of the supporting affidavit to the Notice of Motion
The supporting affidavit was inadmissible for want of form and non-compliance with the court's rules, and both the motion and affidavit were struck out
The court noted that every application must be supported by a valid affidavit. Under Rule 17(8) of the ELRC Procedure Rules and Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practices and Procedures Rules, 2013, a Notice of Motion must set out its grounds and be supported by an affidavit. Here the affidavit in support (by Sammy Kipkoech Keter) differed from the affidavit stated in the grounds, so the facts were unsupported and the application failed.
Effect of absence of a valid supporting affidavit
The absence of a supporting affidavit is not a curable technicality but goes to the foundation of the application, leaving the motion without evidentiary proof
The court held that the defect was fundamental rather than procedural. Without a valid affidavit, the facts relied upon were unsupported, and the Notice of Motion could not stand the test of evidentiary proof required by law. The court relied on Maureen Nyambura Ngigi Warui v Board of Directors, Kenya Power & Lighting Company Limited & 2 others in striking out the defective application.
Locus standi of the petitioner under Articles 22(2)(c) and 258(1)(c)
The court declined to determine standing at this stage, noting the Grounds of Opposition were directed at the defective Notice of Motion, and directed that the petition itself be heard on the merits
The respondents challenged the petitioner's standing in their Grounds of Opposition, contending the petition should be struck out under Articles 22(2)(c) and 258(1)(c) of the Constitution. The court observed that these grounds were essentially filed in opposition to the defective Notice of Motion rather than the petition, and directed the respondents and interested party to reply to the petition so it could be heard on the merits.
Legal principles established
#- A Notice of Motion must be supported by a valid affidavit; failure to attach a proper supporting affidavit goes to the root of the application and is not a mere technicality curable by the court
Court orders
#- 1.The application dated 1st April, 2021 and its supporting affidavit are struck out for being bad in law
- 2.The respondents and interested party shall reply to the petition and the petition shall be heard on the merits
- 3.No orders on costs
- Jurisdiction invoked
- Article 28 and 47 of the Constitution; Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practices and Procedures Rules, 2013; Rule 17(8) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Co-operatives & Attorney General; Sammy Kipkoech Keter 7 3 others (Interested Parties) [2021] KEELRC 285 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/285/eng@2021-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.