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ELRCDismissedNotice of Motion dated 4th June, 2024 (in the main suit)· [2024] KEELRC 2204 (KLR)

Kenya Building, Construction, Timber and Furniture Industries Employees Union v Laminates Furniture Limited (Cause E359 of 2024) [2024] KEELRC 2204 (KLR)

Employment and Labour Relations Court
18 September 2024
2,397 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A trade union's interim application failed because its 84 supporting exhibits were not sealed and marked as Kenyan law requires.

What this practically means

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Executive summary

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The Claimant union filed a Notice of Motion dated 4th June 2024 seeking, among other prayers, a declaration that 19 employees of the Respondent lost their employment on account of discrimination for joining the trade union. The union alleged the Respondent converted oral contracts into written contracts effective 1st June 2024 without crediting prior service, issued notices to show cause, and terminated the grievants on 30th May 2024 in circumstances actuated by the recognition dispute. The Respondent opposed through a Replying Affidavit of Bharat Dhokia, contending no dismissal occurred as alleged, that reinstatement is not an interim remedy, and attacking the Supporting Affidavit as commissioned by an advocate not found on the LSK portal and with exhibits neither sealed nor marked. The Court framed two issues: the validity of the Supporting Affidavit and exhibits, and entitlement to the reliefs sought. It found the advocate duly admitted (Admission No. P105/1359/84) but held Rules 9 and 10 of the Oaths and Statutory Declarations Rules on sealing and marking exhibits mandatory, and that Article 159(2)(d) cannot override clear statutory provisions. All 84 exhibits were expunged, leaving the application unsupported. The Notice of Motion was dismissed for want of proof with each party bearing their own costs. The discrimination and reinstatement claims remain for determination in the main suit.

Key legal issues

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01

Validity of the Supporting Affidavit and its exhibits

Holding

None of the 84 exhibits was sealed under the seal of a Commissioner for Oaths or marked with serial letters as required by Rule 9; they were expunged, rendering the application unsupported

Reasoning

The Court found Rules 9 and 10 of the Oaths and Statutory Declarations Rules mandatory, promulgated under section 6 of the Oaths and Statutory Declarations Act. Following Mbaranya and Matus, exhibits not sealed and marked must be struck out. Since the Claimant did not contest the sealing defect, the burden it bore to prove validity was not discharged, and Article 159(2)(d) could not rescue the defect.

p. 5
02

Whether the advocate commissioning the affidavit was duly authorised

Holding

The LSK portal listed Stanley Mwangi Kinuthia Wandaka (Admission No. P105/1359/84, admitted 3rd September 1984), though a search under 'S.K.M. Wandaka' yielded no results; the burden lay on the Claimant to prove the affidavit's validity

Reasoning

The Respondent's search under the advocate's initials yielded no results, which the Court found factual, but the portal showed the advocate under his full name with a current Practising Certificate attached. The Court nonetheless held that once validity was queried, the Claimant bore the onus of providing sufficient proof.

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Entitlement to interim reliefs including a declaration of discriminatory dismissal

Holding

The application failed for want of a supporting affidavit and exhibits and was dismissed; the merits of the discrimination and reinstatement claims were not determined

Reasoning

With all exhibits expunged, the Notice of Motion was unsupported. The Court also observed the application sought no orders pending hearing of the main suit and that some prayers required full hearing. The application was accordingly dismissed for want of proof.

p. 5

Legal principles established

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  • Rules 9 and 10 of the Oaths and Statutory Declarations Rules requiring exhibits to be securely sealed and marked with serial letters of identification are mandatory and non-compliance is fatal to admissibility
  • Article 159(2)(d) of the Constitution cannot be invoked to cure non-compliance with clear statutory provisions

Court orders

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  1. 1.The 84 exhibits to the Supporting Affidavit of Julius Macharia Maina sworn on 4th June 2024 are expunged from the record
  2. 2.The Claimant's Notice of Motion dated 4th June, 2024 is dismissed for want of proof
  3. 3.Parties shall bear own costs

Authorities

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Legislation

  • Oaths and Statutory Declarations RulesRule 9, Rule 10, Third Schedule
  • Oaths and Statutory Declarations ActSection 6
  • Constitution of KenyaArticle 159(2)(d), Article 48
  • Employment ActSection 46
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (10)

  • Abraham Gumba V Kenya Medical Supplies Authority
    (2014) eKLR
  • Anthony Njue John V National Bank of Kenya Ltd
    (2017) eKLR
  • Jason Edward Matus & another V Summit Gehlot & another
    (2021) eKLR
  • Bosongo Medical Hospital & another V Mainstream Welfare Association & another
    (2016) eKLR
  • Abraham Mwangi V S.O. Omboo & others
    HCCC No. 1511 of 2002
  • Francis A. Mbaranya V Cecilia N. Waema
    (2017) eKLR
  • Solomon Omwenga Omache & another V Zachary O. Ayeko & 2 others
    (2016) eKLR
  • Fredrick Mwangi Ng'ang'a V Garam Investments & another
    (2013) eKLR
  • Abdul Aziz Juma V Nikisuhu Investments & 2 others
    ELC No. 291 of 2013
  • Jeremiah Nyangwara Matoke V Independent Electoral and Boundaries Commission & 2 others
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (interlocutory application within a recognition dispute); ruling delivered under Covid-19 directions of the Chief Justice

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, "Kenya Building, Construction, Timber and Furniture Industries Employees Union v Laminates Furniture Limited (Cause E359 of 2024) [2024] KEELRC 2204 (KLR)", Case Analysis (2024). Notice of Motion dated 4th June, 2024 (in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2204/eng@2024-09-18

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