Kinyanjui v Nzioka & another (Suing as the Representative and Administrator of the Estate of Boniface Kyungu Nzioka) (Employment and Labour Relations Appeal E218 of 2024) [2025] KEELRC 303 (KLR)
The bottom line
#A Kenyan court struck out paragraphs of an advocate's affidavit that stated contested facts without revealing their source.
What this practically means
#Executive summary
#Key legal issues
#Whether the deponent-advocate should be called for cross-examination under Order 19 Rule 2 of the Civil Procedure Rules
The Court did not order cross-examination; instead it struck out the offending contested paragraphs, mooting the need for the deponent's attendance
The Court noted the ELRC has its own rules and the Civil Procedure Rules apply only to a limited extent, being guided by section 20 of the ELRC Act to act without undue regard to technicalities. It accepted the principle that advocates should not depone to contentious facts. Rather than call the advocate as a witness, the Court removed the contentious averments - paragraphs 3 and 4 - from the record, which disposed of the practical need for cross-examination.
Whether paragraphs 3 and 4 of the Supporting Affidavit sworn by the advocate contained contentious, unproven facts
Both paragraphs were struck out: paragraph 3 because the employment of the deceased was contested and no source of the information was disclosed; paragraph 4 because the phrase 'with a lot of resistance' was argumentative and subjective and the source was undisclosed
The appellant had consistently contested that the deceased was its employee, asserting the deceased was an independent contractor both in the objection before DOSH and in the memorandum of appeal. The advocate nonetheless deposed to the employment relationship as fact without disclosing her source. In paragraph 4, the words 'with a lot of resistance' were found argumentative and subjective, again without disclosed source. Both paragraphs were therefore struck out.
Whether paragraph 8 of the Supporting Affidavit should be struck out
Paragraph 8 was not struck out; the advocate merely drew the Court's attention to an existing ruling
The Court aligned itself with the reasoning in Oriental Commercial Bank Ltd v Shreeji Contractors Ltd, that an advocate's affidavit making deductions from matters on the court record, such as judgments and rulings, is not contentious, oppressive or scandalous. Reference to the ruling of 24th November 2023 in ELRCMISC/E077/2023 was therefore unobjectionable.
Legal principles established
#- An advocate should not swear affidavits on contentious matters of fact on behalf of a client; doing so makes the advocate a viable witness for cross-examination and is an irregular practice
- Where facts deponed to by an advocate are contested, the advocate cannot state them as fact without disclosing the source of the information, and such paragraphs will be struck out
- There is nothing wrong per se with an advocate swearing an affidavit, save where the deponent descends into the arena of litigation on contested facts
Court orders
#- 1.Paragraph 3 of the affidavit sworn by Faith Mutio Mutuku Advocate on 16th October 2024 is struck out
- 2.Paragraph 4 of the affidavit sworn by Faith Mutio Mutuku Advocate on 16th October 2024 is struck out
- 3.The prayer for cross-examination of the deponent was effectively dispensed with by the striking out of the contested paragraphs; paragraphs 8 and 9 were not struck out
- 4.Parties to file submissions in the pending application within 14 days concurrently
- 5.Mention on 19th February 2025 to issue a ruling date
- 6.Costs in the cause
- On appeal from
- Director Occupational Safety and Health Services
- Jurisdiction invoked
- Appeal against the award of the Director Occupational Safety and Health Services under the Work Injury Benefits Act, Cap 236; procedure governed by the Employment and Labour Relations Court (Procedure) Rules 2024 and section 20 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyanjui v Nzioka & another (Suing as the Representative and Administrator of the Estate of Boniface Kyungu Nzioka) (Employment and Labour Relations Appeal E218 of 2024) [2025] KEELRC 303 (KLR)", Case Analysis (2025). Case number not stated in the judgment (related suit: Milimani ELRCMISC/E077/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/303/eng@2025-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.