Mitawa Samora Okeke & 25 others v Wycliffe Sava Mundu & 3 others [2021] KEELRC 1420 (KLR)
The bottom line
#The Employment Court struck out a union dispute because a non-claimant swore the supporting affidavit, confirming strict standing requirements in Kenya.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the interim orders sought in the application should issue
- 2.The standing of the claimants (and of Caleb Olum who swore the verifying/supporting affidavit)
- 3.The status of the respondents' Replying Affidavit, which was alleged to be improperly commissioned
Key legal issues
#Standing of Caleb Olum to support and verify the claim
Caleb Olum, a former employee who is not among the listed claimants and who is neither an advocate, office bearer nor authorised representative under section 22 of the ELRC Act or section 2 of the LRA, lacked standing; the suit was irregular and was struck out
The claimants are represented by an advocate. Olum is not a listed claimant and holds no letter of appointment from an authorised representative under the Labour Relations Act. The irregularity is incapable of cure, depriving the suit of foundation. Consequently, the interim orders sought in the application could not issue.
The respondents' Replying Affidavit
Although the Replying Affidavit of the 1st respondent was defective for failing to state the place of attestation, the court noted the factual matters raised in oral submissions concerning parallel suits
Relying on section 5 of the Oaths and Statutory Declarations Act and cited authorities, the affidavit was improperly commissioned. However, the court still took account of relevant matters in the submissions, namely the existence of ELRC No. 370 of 2020 and ELRC No. 834 of 2020 arising from the same cause of action.
Multiplicity of suits over the same cause of action
The issues in the three pending causes are substantially identical; the struck-out matter should be placed before the Judges handling Causes 370 and 834 of 2020 to avoid conflicting orders
The final orders sought replicate those in the other two causes pending before Onyango, J and Nduma, J. Dealing with the files separately would produce conflicting orders and complicate enforcement. Consolidation before one judge serves the ends of justice.
Legal principles established
#- A verifying or supporting affidavit over a claim must be sworn by a person with standing; a non-claimant former employee cannot verify claims on behalf of represented claimants
- An affidavit whose jurat does not state the place where the oath was taken is irregular and may be struck out
- Representation before the ELRC is confined to the categories in section 22 of the ELRC Act; a paid-up union member who is not a claimant is not an authorised representative
Court orders
#- 1.The suit is struck out
- 2.The matter and the orders shall be brought to the attention of the Judges presiding over ELRC No. 370 of 2020 (Onyango, J, 10th February 2021) and ELRC No. 834 of 2020 (Nduma, J, 22nd February 2021)
- 3.All parties in Cause No. 370 of 2020 and Cause No. 834 of 2020 shall be served with the orders and directions
- 4.No orders on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 41(1), 22(1) and (2) of the Constitution; sections 34(4), 39(a), 41(1), 42 and 47 of the Labour Relations Act; Rules 4(1), 5(1), 17(1), (5), (6) of the ELRC (Procedure) Rules
Relief refused
#Orders halting National and Regional elections of the union and restricting the respondents from transacting union business, remitting dues to Jamii Sacco, remitting NSSF/NHIF, convening the National Executive Board and suspending the 1st respondent
The suit itself was irregular and struck out, so the interim orders fell away
Costs
No orders on costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The suit has no foundation. It is irregular on all fronts. It must be struck out.
A former employee, a paid up member of a trade union is not an authorised representative allowed to represent other employees as done in this matter.
The affidavit is not properly commissioned. It is not an affidavit at all. It is irregular. It is hereby struck out.
Accordingly, on the analysis and findings above, the suit herein is struck out save; a) The matter herein and ORDERS above shall be brought to the attention of Judges presiding and be placed in Cause No.370 of 2020 and coming up before Onyango, J on 10 th February, 2021 and Cause No.834 of 2020 coming up before Nduma, J on 22nd February, 2021; b) All parties in Cause No.370 of 2020 and Cause No.834 of 2020 shall be served with Orders and directions herein; and c) No orders on costs.
Issues in the judgment
#Cause number of the suit before the court is not stated anywhere in the judgment
The number of claimants is stated inconsistently as 25, 26, and Caleb Olum being separate from the 26 listed claimants
The claimant is described singularly in the opening line although 26 claimants are listed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mitawa Samora Okeke & 25 others v Wycliffe Sava Mundu & 3 others [2021] KEELRC 1420 (KLR)", Case Analysis (2021). ELRC Cause (Nairobi) – Application dated 21st January 2021 in Cause pending before M. Mbaru, J (cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1420/eng@2021-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.