Ambayo v Namuraka (Cause E299 of 2023) [2025] KEELRC 496 (KLR)
The bottom line
#A Kenyan employment claim was permanently lost because the court filing was unsigned and unsworn, and the claimant missed deadlines after dismissal.
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 Motion dated 12 August 2024 seeking reinstatement of the Cause dismissed for want of prosecution should be allowed
- 2.Whether the Notice to Show Cause was properly served on the Claimant
- 3.Whether there was a valid Cause before the Court, given an unsigned Memorandum of Claim and unsworn verifying affidavit
- 4.Whether the Cause was filed outside the limitation period prescribed by section 90 of the Employment Act
- 5.Whether the Court had first-instance pecuniary jurisdiction over the dispute
Key legal issues
#Validity of the Cause instituted
The dismissed Memorandum of Claim had not been signed by the Claimant's advocate and the verifying affidavit was not sworn, so there was no valid Cause before the Court; the later attempt to file a signed Memorandum on 17 November 2024 was of no legal consequence.
The Court held that the originating process dismissed for want of prosecution was itself defective ab initio. Because the Memorandum of Claim was unsigned and the verifying affidavit unsworn, no valid cause existed that could be reinstated. A subsequent filing of a signed memorandum after dismissal could not cure the defect or give legal effect retroactively.
Service of the Notice to Show Cause
The Claimant's assertion that the Notice to Show Cause was not served was contradicted by the record; the Deputy Registrar served it by email on 7 May 2024.
Despite the Claimant's claim that no notice of the rescheduled mention or dismissal was given, the Court's record showed the Deputy Registrar issued and served the Notice to Show Cause through the Claimant's email address on 7 May 2024, defeating the claim of improper notice or service.
Limitation under section 90 of the Employment Act and pecuniary jurisdiction
The Claimant failed to disclose the date of dismissal, giving credence to the assertion that the Cause was filed outside the prescribed 3 years; and the Court lacked first-instance pecuniary jurisdiction on the face of the Memorandum of Claim.
The Court noted the Claimant's omission of the dismissal date from the Memorandum of Claim, which supported the Respondent's preliminary objection on time-bar under section 90 of the Employment Act. Further, allowing reinstatement would be futile because the dismissed Memorandum of Claim disclosed that the Court lacked first-instance pecuniary jurisdiction over the dispute.
Diligence in prosecution of the Cause
The Claimant's failure to file and serve submissions by the agreed timeline indicated indolence or lack of diligence.
The Court had directed the parties on 19 November 2024 to file and exchange submissions by 30 November 2024. The Claimant's submissions were not on record by that timeline while the Respondent filed on 19 December 2024. The Court treated this non-compliance as further evidence of the Claimant's lack of diligence in prosecuting the cause.
Legal principles established
#- An unsigned Memorandum of Claim and unsworn verifying affidavit mean there is no valid cause before the Court.
- Service of a Notice to Show Cause by email to a party's email address constitutes valid service.
Court orders
#- 1.The Motion dated 12 August 2024 is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the ELRC Act (Cause for reinstatement of suit dismissed for want of prosecution; no specific provision quoted in the judgment)
Relief refused
#Review/setting aside of the order dismissing the suit for want of prosecution and reinstatement of the Cause
There was no valid Cause before the Court in the first place (unsigned Memorandum of Claim and unsworn verifying affidavit); the Notice to Show Cause was duly served by email; the Cause was apparently time-barred; the Claimant was indolent; and the Court lacked pecuniary jurisdiction over the dispute
Costs
The Motion dated 12 August 2024 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.
The verifying afidavit was also not sworn thus there was no valid Cause before the Court in the first place.
The attempt by the Claimant to file a signed Memorandum of Claim on 17 November 2024 is of no legal consequence.
the failure of the Claimant to file and serve submissions is indicative of indolence or lack of diligence in prosecuting of his cause.
it would be an exercise in futility to allow the Motion, considering that on the face of the dismissed Memorandum of Claim, the Court lacked first-instance pecuniary jurisdiction over the dispute.
From the above, the Motion dated 12 August 2024 is dismissed with costs to the Respondent.
Issues in the judgment
#Gender inconsistency in reference to the Claimant: the Respondent's affidavit refers to the Claimant's name stated as 'her', while the Court refers to the Claimant as 'his'.
The full name of the Respondent is never stated in the judgment; the Respondent is identified only through its advocates' firm.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ambayo v Namuraka (Cause E299 of 2023) [2025] KEELRC 496 (KLR)", Case Analysis (2025). Employment and Labour Cause No E299 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/496/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.