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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 2689 (KLR)

Republic v Counselors & Psychologists Board & another; Ndinda & another (Exparte Applicants) (Judicial Review Application E002 of 2023) [2024] KEELRC 2689 (KLR)

Employment and Labour Relations Court of Kenya
31 October 2024
1,209 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court threw out a defective affidavit for improper commissioning but allowed a corrected one, insisting legal procedures cannot be bypassed.

What this practically means

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Executive summary

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The ex parte applicants in judicial review proceedings before the Employment and Labour Relations Court at Mombasa sought to strike out two Replying Affidavits filed by the 2nd Respondent on 5 March 2024 and 9 July 2024, alleging want of form, fictitious dates and annexures, filing without leave, and commissioning by an interested office contrary to the Oaths and Statutory Declarations Act. The 2nd Respondent, through Anne Kanake, admitted errors but characterised them as technicalities curable under Article 159 of the Constitution, denying any demonstrated interest by the commissioning officer. The 1st respondent filed no response. Mbarũ J framed a single issue: whether the two affidavits were defective and should be struck out. The court held that Article 159 does not oust procedures regulated by law, applying the Court of Appeal decision in Said Sweilem Gheithan Saanum v Commissioner Of Lands, and that a deponent cannot commission an affidavit drawn by the same office, rendering the 5 March 2024 affidavit invalid. However, the later 9 July 2024 affidavit cured that lapse, and no leave was required to file it before pleadings closed under Rule 14 of the ELRC (Procedure) Rules. The court expunged only the 5 March 2024 affidavit, granted the 2nd respondent 14 days to file a comprehensive response, directed the applicants to file their records within 21 days, placed a pending notice to show cause in abeyance, and ordered costs to abide the outcome of the application.

Key legal issues

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01

Defects in the Replying Affidavit dated 5 March 2024

Holding

The affidavit was defective, including for having been commissioned by an interested office, and was expunged

Reasoning

The court found that the 2nd respondent's office could not commission an affidavit drawn by the Attorney General's office, as that offends the Oaths and Statutory Declarations Act. The applicants had also not been honestly informed of the date the oath was taken. However, rather than strike out all affidavits as sought, the court expunged only the 5 March 2024 affidavit and allowed the 2nd respondent time to file a comprehensive response.

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02

Whether the Replying Affidavit dated 9 July 2024 required leave of the court

Holding

No leave was necessary because it was filed before pleadings closed

Reasoning

The applicants contended that the later affidavit was filed without leave or directions, contrary to Civil Procedure Rules. The court held that under Rule 14 of the Employment and Labour Relations Court (Procedure) Rules, no leave is needed to file documents before pleadings close, and that the technicalities invoked related to matters governed by the Civil Procedure Rules applied in a different context.

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03

Whether the alleged defects were mere technicalities curable under Article 159 of the Constitution

Holding

Some defects were genuine non-compliance with the Oaths and Statutory Declarations Act, but the curative regime of Article 159 did not validate an affidavit commissioned by an interested office

Reasoning

The 2nd respondent argued the defects were mere technicalities cured by Article 159. The court, citing Said Sweilem Gheithan Saanum v Commissioner Of Lands, accepted that Article 159 is not a panacea for every malady and does not oust procedures regulated by law. Nonetheless, the court adopted a case-management approach, expunging only the defective affidavit and giving directions for the prosecution of the main application.

p. 3

Legal principles established

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  • Article 159 of the Constitution does not override a procedure specifically regulated by law; where a procedure is prescribed it must be followed
  • An affidavit cannot be commissioned by the same office or person that drew it or is party to the matter

Court orders

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  1. 1.The Replying Affidavit dated 5 March 2024 is expunged
  2. 2.The 2nd respondent is allowed 14 days to file a comprehensive response attaching all necessary documents
  3. 3.The ex parte applicants are to file all necessary records within 21 days to allow pleadings to close within 28 days
  4. 4.Costs to abide by the outcome of the application
  5. 5.The notice to show cause why the application should not be dismissed is placed in abeyance to allow parties to comply
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court (ex parte applicants moved the court through judicial review proceedings); statute not expressly cited in the judgment

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, "Republic v Counselors & Psychologists Board & another; Ndinda & another (Exparte Applicants) (Judicial Review Application E002 of 2023) [2024] KEELRC 2689 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2689/eng@2024-10-31

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