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ELRCAllowedCause No 3 of 2019· [2021] KEELRC 499 (KLR)

Dennis Leak Ojuok v Population Services Kenya [2021] KEELRC 499 (KLR)

Employment and Labour Relations Court
15 November 2021
JKJ. W. Keli
1,353 words in judgment
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The bottom line

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A Kenyan employment court allowed a worker's missing verifying affidavit to be filed late, ruling that curable paperwork mistakes should not kill a valid claim.

What this practically means

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Executive summary

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The Claimant moved the Employment and Labour Relations Court at Bungoma by Notice of Motion dated 13th October 2021, under sections 1A and 3A of the Civil Procedure Act, Order 7 Rule 5 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution, seeking leave to file verifying affidavits to the Memorandum of Claim dated 26th March 2018 and the Amended Memorandum of Claim of 15th April 2019, and that the annexed affidavits be deemed properly filed. Counsel for the Claimant, Hammerton Jesbiab Maloba, explained that the verifying affidavit had been signed but was never commissioned, and that the omission was only discovered after the hearing. The Respondent, through its Human Resources Director Allan Ngunze, opposed the application on the ground that it came after both parties had closed their cases, and argued that the indolence of the Applicant's advocate should not be entertained. The court, in a ruling by J. W. Keli, Judge, adopted D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina on sustaining suits rather than summarily dismissing them, and Microsoft Corporation v Mitsumi Computer Garage on the purpose of a verifying affidavit. Finding that the Respondent never raised the defect at trial, had been cross-examined on the pleadings, and had disclosed no prejudice, and that the application was filed before a judgment date was fixed, the court held that striking out the claim would be unreasonable, draconian and unfair. Pursuant to Article 159(2)(d) and section 20(1) of the ELRC Act, leave was granted, the verifying affidavits sworn on 2nd October 2021 and filed on 15th October 2021 were deemed properly filed, and costs of the application were awarded in the cause. The application was allowed in its entirety.

Key legal issues

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01

Whether leave to file verifying affidavits out of time, after conclusion of hearing, should be granted

Holding

Leave granted; the omission was an honest mistake by counsel, the Respondent raised no issue at trial, and no prejudice was demonstrated

Reasoning

The court held that the Claimant's pleadings lacked verifying affidavits due to an honest mistake by counsel, which should not be visited on the client. The Respondent never raised the defect during trial, the Claimant adopted and was cross-examined on the pleadings, and the Respondent disclosed no prejudice. Article 159(2)(d) and section 20(1) of the ELRC Act required the court to dispense justice without undue regard to procedural technicalities, and the application was filed before a judgment date was issued.

p. 2
02

Purpose of a verifying affidavit

Holding

Its broad purpose is to verify the contents of the plaint/claim, as held in Microsoft Corporation v Mitsumi Computer Garage Ltd

Reasoning

The court adopted Ringera J's statement of the purpose of a verifying affidavit, noting that in that case the judge struck out an offending verifying affidavit and ordered a fresh one filed, showing the defect is curable rather than fatal. This supported the conclusion that filing the affidavits now, sworn, commissioned and notarised, cured the non-compliance.

p. 2

Legal principles established

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  • A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal where the defect is curable
  • The broad purpose of a verifying affidavit is to verify the contents of the plaint
  • It is unreasonable to strike out a claim for lack of a verifying affidavit after hearing where no prejudice is shown and the claim was adopted and verified at trial

Court orders

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  1. 1.Leave granted to the Claimant/Applicant to file verifying affidavits to the Memorandum of Claim dated 26th March 2018 and to the Memorandum of Claim amended on 15th April 2019
  2. 2.The verifying affidavits sworn on 2nd October 2021 and filed on 15th October 2021 and annexed to the Application deemed properly filed
  3. 3.Costs of the application in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure RulesOrder 7 Rule 5
  • Constitution of KenyaArticle 159(2)(d)
  • Employment and Labour Relations Court Actsection 20(1)
  • Employment and Labour Relations Court RulesRules (4) and (2)

Cases cited (2)

  • D.T.Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another
    (1980) eKLR
  • Microsoft Corposration v Mitsumi Computer Garage ltd & Another
    (2001) eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution; sections 1A and 3A of the Civil Procedure Act; Order 7 Rule 5 of the Civil Procedure Rules; Employment and Labour Relations Court Rules

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, "Dennis Leak Ojuok v Population Services Kenya [2021] KEELRC 499 (KLR)", Case Analysis (2021). Cause No 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/499/eng@2021-11-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.