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ELRCAllowedNotice of Motion dated 7th October 2022 (ruling in a Petition and Notice of Motion both dated 18th May 2022)

Kosgei & 3 others v Geothermal Development Company Limited; KCB Bank of Kenya Limited (Interested Party) (Employment and Labour Relations Petition E077 of 2022) [2024] KEELRC 592 (KLR)

Employment and Labour Relations Court
8 March 2024
OKOcharo Kebira
1,644 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court allowed a party to fix an affidavit wrongly commissioned by its own lawyer, awarding the other side small costs.

What this practically means

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Executive summary

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The Respondent/Applicant moved the court by Notice of Motion dated 7th October 2022 seeking leave to withdraw its Replying Affidavit sworn on 4th August 2022, filed in opposition to the Petitioners' Petition and Notice of Motion both dated 18th May 2022, and to file a substitute. The defect was that the affidavit was commissioned by Advocate Chemng'orem Philip Kiptoo, an employee of the Respondent who had also appeared as its counsel, contrary to the proviso to Section 4(1) of the Oaths and Statutory Declarations Act. The Petitioners opposed, arguing that commissioning is anchored in substantive law, that the breach was not a mere technicality, that substitution would prejudice them since their submissions already addressed the impugned affidavit, and that the application was lodged late without explanation. Ocharo Kebira J framed a single issue: whether the orders sought should be granted. The court accepted that the affidavit was commissioned in breach of the Act but held that invalidating it outright would leave the Respondent without a response, causing the Petition to be determined without a hearing on merit contrary to Article 159(2)(d). Guided by the overriding objective under Sections 1A, 1B and 3A of the Civil Procedure Act, and reasoning that any prejudice to the Petitioners was compensable by costs, the court allowed the application. The impugned affidavit was marked withdrawn, leave was granted to file a fresh Replying Affidavit within seven days, and thrown away costs of Kshs. 5,000/- each were awarded to the Petitioners, payable before the next hearing date.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court should grant the orders sought in the Notice of Motion dated 7th October 2022 (leave to withdraw a replying affidavit wrongly commissioned by an advocate for the party and to file a substitute)

Key legal issues

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01

Effect of an affidavit commissioned in breach of Section 4(1) of the Oaths and Statutory Declarations Act

Holding

The breach does not render the affidavit invalid; the court may allow its withdrawal and substitution in furtherance of the overriding objective, provided no uncompensatable prejudice is suffered

Reasoning

The court accepted that the affidavit was wrongly commissioned by an advocate who was an employee and counsel for the respondent, offending the statutory proviso. However, refusing leave would leave the petition unchallenged and be determined without a hearing on merit, contrary to Article 159(2)(d). The petitioners' prejudice was compensable by thrown away costs, so leave to withdraw and substitute was warranted under the overriding objective.

p. 4

Legal principles established

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  • A commissioner for oaths shall not exercise his powers in a proceeding in which he is the advocate for any of the parties or in which he is interested
  • Breach of Section 4(1) of the Oaths and Statutory Declarations Act does not automatically invalidate an affidavit; courts should exercise discretion so as not to stifle the dispensation of justice

Court orders

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  1. 1.The Replying Affidavit sworn on 4th August 2022 is marked as withdrawn
  2. 2.The Respondent/Applicant shall file a fresh Replying Affidavit within 7 days of the order
  3. 3.The Respondent/Applicant shall pay the Petitioners/Applicants thrown away costs of Kshs. 5,000/- each before the next hearing date

The bench

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One judgment of the whole court — no separate or dissenting opinions.

OK
majority

Wrote the judgment

Jurisdiction invoked
Section 3 of the Employment and Labour Relations Court Act; Rule 17(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016; Articles 25, 50 and 159 of the Constitution of Kenya 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I hereby find merit in the Applicant's application. The Replying Affidavit sworn on the 4th of August 2022, is hereby marked as withdrawn. The Respondent/Applicant shall file a fresh Replying Affidavit within 7 days of this order and pay the Petitioners/Applicants thrown away costs of Kshs. 5,000/- each, before the next hearing date.
p. 4Final orders - withdrawal of wrongly commissioned affidavit and substitution
The general thread in judicial determinations on the issue is that courts should endeavour to exercise their discretion in a manner that does not stifle the dispensation of justice.
p. 3Discretion on defective affidavits
The Commissioner for oaths takes the personal responsibility of ensuring that the deponent is telling the truth as per the Affidavit.
p. 3Rationale for commissioning rules
This will not be in accord with the provisions of Article 159 (2) (d).
p. 4Overriding objective and eschewing technicalities

Issues in the judgment

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minor

The judgment records the Petitioners/Respondents' submissions as dated 5th September 2022, which precedes the application of 7th October 2022 they oppose; likely a typographical error

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, "Kosgei & 3 others v Geothermal Development Company Limited; KCB Bank of Kenya Limited (Interested Party) (Employment and Labour Relations Petition E077 of 2022) [2024] KEELRC 592 (KLR)", Case Analysis (2024). Notice of Motion dated 7th October 2022 (ruling in a Petition and Notice of Motion both dated 18th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/592/eng@2024-03-08

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