Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherNot stated in judgment· [2023] KEELRC 679 (KLR)

Ahmed v Malik (Sued as Chairman of Sir Ali Muslim Club) & 3 others (Cause E063 of 2022) [2023] KEELRC 679 (KLR)

Employment and Labour Relations Court
16 March 2023
LNLINNET NDOLO
581 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court refused to strike out a counterclaim, ruling one verifying affidavit can cover co-defendants sued as officers of the same company.

What this practically means

#

Executive summary

#
By a Statement of Claim dated 3rd February 2022, the Claimant sued the Respondents for constructive termination of employment. The Respondents filed an amended Statement of Defence and Counterclaim, to which the Claimant responded. The Claimant then lodged a Notice of Preliminary Objection dated 24th October 2022 seeking the striking out of the Counterclaim on the grounds that it offended Rule 9(3) of the Employment and Labour Relations Court (Procedure) Rules, 2016, that the verifying affidavit dated 6th October 2022 contravened Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 and Rule 4(2) of the ELRC Rules, that those provisions were mandatory, and that the lack of consent of the 2nd, 3rd and 4th Respondents was fatal. The Objection was urged by written submissions. Ndolo J declined to strike out the Counterclaim. The court held that, since the 1st, 2nd and 3rd Respondents were sued in their capacity as officers of the 4th Respondent and are joint parties, it was sufficient for the verifying affidavit to be sworn by the 1st Respondent on his own behalf and on behalf of the others. The court further held, in any event, that even if the consent of the 2nd, 3rd and 4th Respondents were necessary, its absence would not be a valid ground for striking out the Counterclaim. The court noted but did not itself adopt the persuasive decision in Eye Company (K) Limited v Erastus Rotich t/a Vision Express relied on by the Respondents. The Preliminary Objection was overruled with costs in the cause. The main claim and Counterclaim remain pending for determination.

Key legal issues

#
01

Sufficiency of the verifying affidavit to the Counterclaim

Holding

The verifying affidavit sworn by the 1st Respondent on behalf of all Respondents was sufficient since the 1st, 2nd and 3rd Respondents were sued as officers of the 4th Respondent and are joint parties

Reasoning

The court examined the pleadings and observed that the individual Respondents were sued in their capacity as officers of the 4th Respondent. In that posture, the Statement of Defence and Counterclaim had to be viewed as a joint assertion of the Respondents' case, and one verifying affidavit by the 1st Respondent covered all. The court found nothing to suggest the 1st Respondent lacked capacity to depone on behalf of the others.

p. 2
02

Effect of absence of consent of the 2nd, 3rd and 4th Respondents to the Counterclaim

Holding

Lack of consent would not, in any event, be a valid ground for striking out the Counterclaim

Reasoning

The court reasoned that even assuming the consent of the 2nd, 3rd and 4th Respondents was necessary, that deficiency would not render the Counterclaim incurably defective. Procedural defects of this nature do not justify the drastic remedy of striking out a pleading.

p. 2

Legal principles established

#
  • Where co-defendants are sued in their capacity as officers of a company, it is sufficient for the verifying affidavit to be sworn by one of them on his own behalf and on behalf of the others
  • Even if consent of other parties were necessary, its absence would not be a valid ground for striking out a counterclaim

Court orders

#
  1. 1.The Claimant's Preliminary Objection is overruled with costs in the cause

Authorities

#

Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 9(3)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 4(2)
  • Civil Procedure Rules, 2010Order 19 Rule 3(1)

Cases cited (1)

  • Eye Company (K) Limited v Erastus Rotich t/a Vision Express
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ahmed v Malik (Sued as Chairman of Sir Ali Muslim Club) & 3 others (Cause E063 of 2022) [2023] KEELRC 679 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/679/eng@2023-03-16

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