Metric Inn Hotel Limited & another v Barasa (Appeal E114 of 2023) [2023] KEELRC 3171 (KLR)
The bottom line
#The Employment Court in Mombasa struck out a stay-of-execution application because the supporting affidavit named in the motion was never filed.
What this practically means
#Executive summary
#Key legal issues
#Competency of a notice of motion supported by an affidavit that is not attached, with a different person's affidavit filed instead
The application is incompetent and must be struck out; the defect is material and cannot be cured as a technicality.
Rule 17(8) of the ELRC (Procedure) Rules, 2016 requires that a motion be served with the supporting affidavit referred to in it. A competent application must have the grounds and the supporting affidavit. Here the motion indicated reliance on the affidavit of Suzanne Olang, which was not attached; instead an affidavit of Stephen Rachuonyo, described as manager of the appellants, was filed. Since Olang was the intended supporting deponent, Rachuonyo could not be summoned to support his averments. Following University of Nairobi v George Mabele Sifuna and Kenya National Chamber of Commerce v County Council of Makueni, the motion was struck out.
Whether stay of execution under order 42 rule 6 should be granted pending appeal
Not determined; the application was struck out for incompetency before the merits were considered.
The court held that without a proper application, addressing the orders sought would not achieve any justice. The respondent's replying affidavit was also noted as failing to address the issue at hand. The stay application therefore failed on a threshold competency ground rather than on the merits of the order 42 rule 6 conditions.
Legal principles established
#- A notice of motion application without a supporting affidavit is incompetent and stands unsupported; it is not a curable technicality and must be struck out.
- Where a motion states that it is supported by an affidavit, both the notice of motion and a copy of the affidavit must be served on the other party, per rule 17(8) of the ELRC (Procedure) Rules, 2016.
Court orders
#- 1.The application dated 27 October 2023 is struck out
- 2.Costs of Kshs. 15,000 awarded to the respondent
- On appeal from
- Employment and Labour Relations Court (MCELRC No.426 of 2019, Mombasa)
- MCELRC No.426 of 2019
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules; ELRC (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Metric Inn Hotel Limited & another v Barasa (Appeal E114 of 2023) [2023] KEELRC 3171 (KLR)", Case Analysis (2023). MCELRC No.426 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3171/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.