Apex Steel Limited v Onyango (Appeal 56 of 2018) [2024] KEELRC 629 (KLR)
The bottom line
#A Kenyan court confirmed that affidavits filed without the court's permission can be struck out, and litigants must be honest with the court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in striking out and expunging from the record a further affidavit filed by the appellant sworn by one Samuel R. Mlemwa on 15th October, 2018 without leave of court
Key legal issues
#Whether the trial court erred in striking out and expunging a further affidavit filed without leave
The appeal fails; the trial court correctly struck out the affidavit since no leave was sought or obtained, and the appellant did not come to court with clean hands
The court found as a fact that there was nothing on record showing leave was sought before filing the further affidavit. The appellant's reliance on Article 159 of the Constitution on procedural technicalities was treated as a thinly veiled admission that leave was never obtained. Because discretionary procedural orders require a party to approach the court with clean hands, and the appellant failed that test, the appeal was dismissed with costs.
Legal principles established
#- Setting aside orders, procedural orders and other directions are discretionary and a party seeking them must approach the court with clean hands
- A further affidavit filed without leave of court may be struck out and expunged from the record
Court orders
#- 1.The appeal is dismissed with costs
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Lower court (Senior Resident Magistrate)
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court (appeal from a ruling of the Senior Resident Magistrate's court)
Relief refused
#The appellant's appeal against the striking out and expunging of the further affidavit
There was no record of leave being sought and obtained before filing the further affidavit; the appellant did not approach the court with clean hands
Costs
The appeal is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Setting aside orders, procedural orders and other directions are discretionary and a party seeking them must approach the court with clean hands. The appellant has failed this test.
The appeal is therefore found frivolous, unmerited and is hereby dismissed with costs.
Issues in the judgment
#The judgment is not verbatim-consistent on the outcome of the expungement application: it states the affidavit was 'expunged by the defendant' and refers to 'Mr. Makori for the defendant/applicant' while the appellant is elsewhere described as the party who filed the affidavit, suggesting possible transcription errors
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Apex Steel Limited v Onyango (Appeal 56 of 2018) [2024] KEELRC 629 (KLR)", Case Analysis (2024). ELRC Appeal No. 56 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/629/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.