Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment· [2022] KEELRC 1253 (KLR)

Kotut & 3 others v Attorney General & 2 others (Petition 63 & 42 of 2015 & 67 of 2017 & 93 of 2016 (Consolidated)) [2022] KEELRC 1253 (KLR)

Employment and Labour Relations Court
8 July 2022
SRStella Rutto
2,241 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court refused to strike out the government's responding affidavits, ruling the objection was a technicality that should not derail the main hearing.

What this practically means

#

Executive summary

#
This Employment and Labour Relations Court ruling by Stella Rutto J, delivered at Nairobi on 8th July 2022, determined the Petitioners' Notice of Preliminary Objection dated 14th February 2020 in a constitutional petition apparently arising from events surrounding the 1982 coup d'etat and involving the Ministry of Defence and the Kenya Defence Forces. The Petitioners sought to strike out the Respondents' Replying Afidavits, Further Replying Afidavits and witness statements, contending that the deponents (serving KDF officers) lacked locus standi since the alleged infringements were committed by officers serving in 1982; that the affidavits were hearsay, defective, imprecise and unauthorised; and that judgment should be entered in their favour with costs. The Respondents, through the Replying Affidavit of Mr Symon Cheberek Yator, maintained that the deponents were authorised serving officers with access to service records, that the objection raised factual matters for full trial, and that striking out was discretionary and should favour resolution on merit. The court framed a single issue: whether the Respondents' Replying Afidavits should be struck out. Holding that the deponents swore in official capacities with stated authorisation and that no contrary evidence was adduced; that with a cause of action over 33 years old it was impracticable for 1982 officers to testify; and that hearsay complaints could be tested at the viva voce hearing already directed on 15th July 2019, the court found the affidavits competent. Relying on the overriding objective and Court of Appeal authority against striking out where alternatives exist, the court disallowed the preliminary objection and ordered costs in the cause.

Key legal issues

#
01

Whether the deponents of the Respondents' Replying Afidavits lacked locus standi

Holding

The deponents swore the affidavits in their official capacities, stated they were authorised, and no evidence was presented to discount their authority

Reasoning

The court defined locus standi by reference to Black's Law Dictionary, found both deponents had introduced themselves in official positions and asserted authorisation, and noted that with a cause of action over 33 years old, it was impracticable for officers serving in 1982 to testify personally.

p. 4
02

Whether the averments in the affidavits were hearsay and the affidavits fatally defective

Holding

The affidavits were competent; hearsay complaints could be tested at the viva voce hearing where the deponents would testify and be cross-examined

Reasoning

The court noted its earlier direction of 15th July 2019 that the matter proceed by way of viva voce evidence, that the deponents had filed witness statements, and that the Petitioners would have the opportunity to test the averments in cross-examination, so striking out was unwarranted at the interlocutory stage.

p. 4

Legal principles established

#
  • The overriding objective overshadows technicalities and unnecessary interlocutory applications should be declined in favour of adjudication on principal issues
  • A court should not strike out proceedings where alternatives enable the case to be dealt with justly

Court orders

#
  1. 1.The Preliminary Objection dated 14th February, 2020 by the Petitioners is disallowed
  2. 2.Costs shall be in the cause

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice & Procedure Rules, 2013
  • Armed Forces Act No. 60 of 1968
  • Oaths and Statutory Declarations Act, Chapter 15 Laws of Kenya
  • Civil Procedure Rules, 2010Order 19 Rule 3(1); Order 21 Rule 1
  • Employment and Labour Relations Court ActSection 3(2)
  • Civil Procedure Act (Chapter 21)Section 1B
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (13)

  • Law Society of Kenya vs Commissioner of Lands & others
    Nakuru High Court Civil Case No. 464 of 2000
  • Alfred Njau and others vs City Council of Nairobi
    (1982) KAR, 229
  • Subramanium vs Public Prosecutor
    (1956) WLR 965
  • Simon Kitavo & another vs Owenga Anjere
    Civil Appeal No. 170 of 1995
  • Cammille vs Meralii
    (1966) EA 411
  • Mayers & another vs Akira Ranch Ltd
    (1974) 169
  • Simon Kirima Mwiaguri & another vs Equity Bank (Kenya) Limited & another
    (2021) eKLR
  • Yaya Towers Limited vs Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • DT Dobie & Company Kenya Limited vs Joseph Mbaria Muchina & another
    (1980) eKLR
  • Wellington Nzioka Kioko v Attorney General
    (2018) eKLR
  • Monica Wangu Wamwere v Attorney General
    (2019) eKLR
  • Kenya Commercial Finance Co. Ltd vs Richard Akuesera Onditi
    (A) 329/2009
  • Stephen Boro Gitiha vs Family Finance Building Society & 3 Others
    CA 363/2009
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and Article 159(2)(d) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kotut & 3 others v Attorney General & 2 others (Petition 63 & 42 of 2015 & 67 of 2017 & 93 of 2016 (Consolidated)) [2022] KEELRC 1253 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1253/eng@2022-07-08

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