Musyoki v Kenya Airways Limited (Cause E644 of 2021) [2024] KEELRC 402 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application was incompetent for citing the Penal Code
Not incompetent; the failure to cite correct provisions was treated as a procedural technicality under Article 159(2)(c)
The motion was expressed under the Penal Code, an Act for criminal matters only, and thus the court was improperly moved. However, Article 159(2)(c) requires courts to disregard undue procedural technicalities. Since the applicant is not legally trained, the court declined to invoke the persuasive Tanzanian authority striking out a similarly defective application, and found the application not incompetent.
Whether the application was an abuse of court process
Yes; dismissed with costs
The court found abuse on three grounds: inordinate and unjustifiable delay (filed over 10 months after the Respondent's documents and 7 months after the applicant testified); prayers for criminal-type investigations beyond the court's jurisdiction; and spurious, unparticularised fraud allegations against the Respondent and its counsel without any supporting material such as a DCI complaint or OB number.
Burden of proof on allegations of forgery
Lay on the applicant, who discharged none
Sections 107, 108 and 109 of the Evidence Act place the burden of proving a fact on the party alleging it. Fraud must be strictly proven and particularly pleaded. The applicant tendered no evidence of forgery, made no criminal complaint to the DCI, and could still summon witnesses and cross-examine at trial to challenge the Respondent's documents.
Legal principles established
#- The Employment and Labour Relations Court is not a criminal court and cannot order or conduct criminal investigations
- Allegations of fraud are serious and must be strictly proven with cogent evidence
- Abuse of court process includes use of the judicial process to the irritation and annoyance of the opponent and the efficient administration of justice
Court orders
#- 1.The Notice of Motion dated 26th November, 2023 dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under its establishing statute; application purportedly brought under the Penal Code, Cap 63
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyoki v Kenya Airways Limited (Cause E644 of 2021) [2024] KEELRC 402 (KLR)", Case Analysis (2024). Notice of Motion dated 26th November, 2023 in the main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/402/eng@2024-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.