Mwenda v SMEP Microfinance Bank Ltd (Miscellaneous Application E030 of 2025) [2025] KEELRC 924 (KLR)

Part II of the ELRC Rules, 2014 prescribes three ways of commencing proceedings: Statement of Claim, Petition and Judicial Review Application, and makes no mention of a miscellaneous application. Applying ejusdem generis to rule 10(3)'s phrase 'or other suit filed before the court', the common denominator is that the recognized instruments institute substantive proceedings; a miscellaneous application does not.

The Applicant relied on Order 51 rule 1 of the Civil Procedure Rules. The court held that the Civil Procedure Rules do not apply to ELRC proceedings as a matter of course but only where the ELRC Rules have imported them, and nothing in the ELRC Rules, 2014 imports Order 51 rule 1. The invocation was therefore impermissible.

The Applicant argued Article 22(3)(b) permitted his mode of approach. The court held the provision relates to enforcement of constitutional rights; the application did not seek enforcement of any Bill of Rights right and none was expressly alluded to, so the Applicant could not rely on it to justify a miscellaneous application.

The orders sought - lifting the account freeze, payment of half salary and restoration of medical cover - require the court to adjudicate rights and obligations under the employment contract. Such substantive remedies must be pursued through a substantive suit (Statement of Claim, Petition or Judicial Review Motion), not a miscellaneous application.

Counsel argued the objection scuttled access to justice. The court held a litigant cannot move the court inappropriately and then claim his access to justice is impeded when the error is objected to, since nothing prevented him from exercising the right correctly as the law contemplates.