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ELRCAllowedNot stated on the face of the ruling· [2023] KEELRC 2306 (KLR)
Nayweni & 45 others v African Shipping Limited & 47 others; International Transport Federation & 4 others (Interested Parties) (Petition E007 of 2022) [2023] KEELRC 2306 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This is a ruling of the Employment and Labour Relations Court at Mombasa (M. Mbarũ J) on an application dated 25 July 2023 by the 42nd respondent, Bamburi Cement Limited, under Rule 3(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, seeking leave to defend the petition and to have its Reply to Petition deemed properly filed out of time. The underlying petition, brought by stevedores against 47 respondents and interested parties, seeks declarations that KPA tariff payments constitute wages due to the petitioners, conversion to contract employment after six months of service, minimum conditions under Part V of the Employment Act, constitutional violations by several respondents, negotiations on wages, and injunctive and prohibitory orders touching on charges collected by the 44th respondent. The 42nd respondent explained its default in filing a response by 28 May 2023 as arising from a change of personnel in the office of Head of Legal and Compliance, and asserted that the petitioners would suffer no prejudice since its response mirrored that of the 1st to 33rd respondents. The petitioners opposed, contending that pleadings had closed and that the supporting affidavit sworn by the advocate, Sanjeev Khagram, rather than the client was defective. The other respondents and interested parties did not oppose. The court applied Rule 13(5) of the ELRC (Procedure) Rules, 2016, allowing extension of time for good cause, and held that an advocate's affidavit is only defective if it addresses contentious matters outside his knowledge, citing Turea Limited v Mohamed and the Advocates Practice Rules. The application was allowed: the 42nd respondent had seven days to file and serve its response, other parties had seven days to respond, with hearing directions to follow and costs abiding the outcome of the petition.
Key legal issues
#01
Leave to file a response out of time under Rule 13(5) of the ELRC Procedure Rules and Rule 3(1) of the Mutunga Rules
Holding
The application was allowed; the 42nd respondent was granted 7 days to file and serve its response
Reasoning
The court reasoned that the Court Rules allow a party to apply for extension of time for good cause. The delay was occasioned by a change of personnel in the head of legal and compliance, no prejudice was demonstrated against the petitioners, and the matter was still at submissions stage before judgment, so the response should not be locked out.
p. 4
02
Validity of a supporting affidavit sworn by an advocate rather than the client
Holding
The affidavit was properly on record because it was sworn on matters within the advocate's personal knowledge and were non-contentious
Reasoning
Applying Rule 9 of the Advocates Practice Rules and Turea Limited v Mohamed, the court held that an affidavit by an advocate is not defective merely because of who swore it, but only if it addresses contentious facts of which the advocate has no knowledge. Here the advocate stated he was personally aware of the cause of the delay.
p. 4
Legal principles established
#- Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
- A respondent served with a petition should be allowed a fair chance to defend the claim without undue regard to technicalities, while securing the petitioners' right to access justice in a timeous manner
- An advocate may swear an affidavit on formal or non-contentious matters of fact in a matter in which he acts or appears
- A party may seek leave to file pleadings out of time before judgment is issued and such a response should not be locked out
Court orders
#- 1.The application dated 25 July 2023 is allowed
- 2.The 42nd respondent is allowed seven (7) days to file a response to the petition and serve all parties
- 3.The other parties are allowed a fair chance of 7 days to file any responses if found necessary, after which the court will give hearing directions on the main petition
- 4.Costs shall abide the outcome of the petition
- Jurisdiction invoked
- Article 162(3) of the Constitution; Employment and Labour Relations Court Act, 2011; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nayweni & 45 others v African Shipping Limited & 47 others; International Transport Federation & 4 others (Interested Parties) (Petition E007 of 2022) [2023] KEELRC 2306 (KLR)", Case Analysis (2023). Not stated on the face of the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2306/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.