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ELRCDismissedCause No 369 of 2019· [2022] KEELRC 1230 (KLR)

Ogecha v Kenyatta University (Cause 369 of 2019) [2022] KEELRC 1230 (KLR)

Employment and Labour Relations Court
21 July 2022
LNLINNET NDOLO
851 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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Karatina University lost its application because its supporting affidavit named two different people as the person who swore it, making the affidavit invalid.

What this practically means

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Executive summary

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The respondent, Karatina University, moved the court by Notice of Motion dated October 7, 2021 seeking an order compelling the Director of Criminal Investigations to furnish a certified copy of a 2018 Cyber Report (File Reference CID/IB/SCU/1/1/20A/VOL. 1/181, CR No. 121/294/2018) and a witness summons for an officer of the Directorate to testify at the hearing. The application was grounded on the Directorate's policy of not releasing reports without a court order and on the court's powers under section 20 of the Employment and Labour Relations Court Act. The background was the claimant's dismissal after being linked to malicious emails circulated to staff and students, his investigation by the DCI, and his prosecution in Kiambu CM Criminal Case No. 1499 of 2018 for publishing a false report contrary to section 66(1) of the Penal Code. The claimant opposed the application as a delaying tactic designed to reopen closed pleadings and prop up a weak defence. The court noted a material irregularity: the application and body of the supporting affidavit named Professor James Kung'u as deponent, while the signature page bore Professor Paul Okemo's name. Professor Okemo attributed this to a clerical error, but the court held that an affidavit is a solemn confirmation of fact whose deponent must be clear, and the unexplained identity of the person who appeared before the Commissioner for Oaths invalidated the affidavit. The application, being unsupported by valid evidence, was disallowed with costs to the claimant.

Key legal issues

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01

Validity of a supporting affidavit with two conflicting deponents

Holding

The supporting affidavit was invalid for want of a clear deponent, leaving the application devoid of supporting evidence

Reasoning

The application and body of the affidavit identified Professor James Kung'u as deponent while the signature page bore Professor Paul Okemo's name, differing materially in appearance. The respondent's explanation of a clerical error was insufficient because the court could not determine which Professor actually appeared before the Commissioner for Oaths. An affidavit being a solemn confirmation of facts, such a lapse invalidates it.

p. 3

Legal principles established

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  • A supporting affidavit must clearly identify its deponent; where the application, affidavit body and signature page name different deponents, the affidavit is invalid
  • An affidavit is a confirmation on oath of the veracity of its contents and is a crucial pleading that should not be taken lightly

Court orders

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  1. 1.The respondent's Notice of Motion dated October 7, 2021 is disallowed
  2. 2.Costs of the application awarded to the claimant

Authorities

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Legislation

  • Penal Codesection 66(1)
  • Employment and Labour Relations Court Actsection 20
Jurisdiction invoked
Section 20 of the Employment and Labour Relations Court Act

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, "Ogecha v Kenyatta University (Cause 369 of 2019) [2022] KEELRC 1230 (KLR)", Case Analysis (2022). Cause No 369 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1230/eng@2022-07-21

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