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ELRCDismissedNotice of Motion dated 16th February 2023 (Employment and Labour Relations Court)· [2023] KEELRC 2983 (KLR)

Mohamed v Judicial Service Commission (Cause E645 of 2022) [2023] KEELRC 2983 (KLR)

Employment and Labour Relations Court
17 November 2023
AMAnna Ngibuini Mwaure
2,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out an application because its affidavit was stamped by a law firm instead of an individual advocate appointed as a commissioner for oaths.

What this practically means

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Executive summary

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The Claimant in an employment dispute filed a notice of motion seeking an order compelling the Respondent (the Judiciary, through its Chief Registrar) to release the Human Resource Disciplinary Committee proceedings of 22nd September 2021, leave to file those proceedings and other documents before pre-trial, and leave to file witness statements of Hassan Lakicha and Purity Gakii Muranguri. The application was supported by an affidavit commissioned under the stamp of the firm of Ndemo Mokaya & Co. Advocates. The Respondent opposed, contending the affidavit was improperly commissioned contrary to sections 4 and 5 of the Oaths and Statutory Declarations Act, that the documents sought were privileged, and that the witness statements added no value. The court framed a single issue: whether the supporting affidavit breached the Oaths and Statutory Declarations Act so as to render the application fatally defective. Applying section 2 of that Act and the authority of Geoffrey Githinji Mwangi v Jubilee Party and Salat v IEBC, the court held that commission as a commissioner for oaths is personal to an individual advocate and cannot vest in a firm; the defect was a point of law, not a technicality curable under Article 159. The supporting affidavit was struck out as incurably defective, rendering the notice of motion incompetent for failing Order 51 Rule 4 of the Civil Procedure Rules. The court also found no evidence of the relevance of the proposed witnesses. The application was dismissed with costs in the cause.

Key legal issues

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01

Validity of an affidavit commissioned under a law firm stamp

Holding

The affidavit was defective as commission is personal to an individual advocate, not a firm; the defect is a point of law, not a technicality curable under Article 159

Reasoning

The court relied on section 2, 4 and 5 of the Oaths and Statutory Declarations Act, under which the Chief Justice appoints individual advocates, not firms, as commissioners for oaths. Citing Geoffrey Githinji Mwangi v Jubilee Party and the Salat decision on Article 159, it held the defect was a point of law and not a mere technicality, so the affidavit was struck out as incurably defective.

p. 5
02

Effect of striking out the supporting affidavit on the notice of motion

Holding

Without a duly filed compliant affidavit the notice of motion fails Order 51 Rule 4 of the Civil Procedure Rules and cannot stand

Reasoning

Order 51 Rule 4 requires that where a motion is grounded on affidavit evidence, a copy of the affidavit intended to be used must be served. This was held mandatory. With the supporting affidavit struck out, the application fell short of that requirement and was rendered incompetent and dismissed.

p. 5

Legal principles established

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  • A firm of advocates cannot commission affidavits; appointment as commissioner for oaths is personal to an individual advocate, and an affidavit witnessed by a general law firm stamp is defective and inadmissible

Court orders

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  1. 1.Supporting affidavit struck out as incurably defective
  2. 2.Application dated 16th May 2023 dismissed
  3. 3.Costs in the cause

Authorities

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Legislation

  • Oaths and Statutory Declarations Actsections 2, 4, 5
  • Statutory Declaration Actsections 4, 5 (as cited by Respondent)
  • Access to Information Actsection 1(h) and (i) of Third Schedule (as cited by Respondent)
  • Judicial Service Act, 2011section 23, Third Schedule
  • Civil Procedure RulesOrder 19 Rule 7; Order 51 Rule 4; Order 21 Rule 1
  • Civil Procedure Actsection 1B
  • Constitution of Kenya, 2010Articles 48, 159(2)(d)

Cases cited (5)

  • Kaiser Investments Limited v Hua Run Company Limited & 3 others
    [2021] eKLR
  • Chris Munga N. Bichage v Richard Nyagaka Tongi & 2 others
    [2013] eKLR
  • Geoffrey Githinji Mwangi & 2 others v Jubilee Party & 11 others
    [2018] eKLR
  • David Wamatsi Omusotsi v The Returning Officer Mumias East Constituency & 2 others
    High Court Kakamega Election Petition No. 9 of 2017 [2017] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (statutory basis not expressly stated in judgment)

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, "Mohamed v Judicial Service Commission (Cause E645 of 2022) [2023] KEELRC 2983 (KLR)", Case Analysis (2023). Notice of Motion dated 16th February 2023 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2983/eng@2023-11-17

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