Seth Panyako v Kenyatta National Hospital (Cause 1589 of 2010) (Employment and Labour) [2012] KEIC 17 (KLR)
The bottom line
#Kenya's Industrial Court refused to throw out Kenyatta National Hospital's case over paperwork defects, ordering fixes instead so the dispute could be decided on its merits.
What this practically means
#Executive summary
#Key legal issues
#Nature of a preliminary objection
What was argued was not a preliminary objection because it required ascertainment of facts
Applying Mukisa Biscuits, a preliminary objection must raise a pure point of law pleaded or arising by clear implication from the pleadings. Whether counsel for the respondent was properly instructed is a factual question requiring ascertainment of facts, so the submissions could not dispose of the matter as a point of law in limine.
Qualification of respondent's counsel
Brenda Kamau is duly qualified and properly instructed; the submissions on unqualified representation failed
Sections 33, 34 and 35 of the Advocates Act target unqualified persons. Counsel is a duly admitted advocate of the High Court with a current practising certificate and active LSK status, so those provisions do not apply to her. The claimant also produced no authority under seal point of substance to displace her instructions.
Defective endorsement of documents under Section 35 of the Advocates Act
The offending affidavit was struck out but the suit was not; the respondent was given 7 days to file a correctly drawn affidavit
A document whose place and person of drawing are unknown is unacceptable in law under Section 35. However, following Microsoft Corporation and Geology Investments, courts should sustain suits rather than strike them out for formal defects, and Article 159(d) requires justice to be administered without undue regard to technicalities.
Legal principles established
#- A preliminary objection raises a pure point of law and cannot be raised where any fact has to be ascertained or judicial discretion is sought
- Courts should lean in favour of doing substantial justice rather than striking out suits for formal defects in document endorsement
Court orders
#- 1.The offending affidavit filed by the Respondent was struck out
- 2.The Respondent was required to file the correctly drawn affidavit within 7 days
- 3.The party in breach to ensure better copies of documents are annexed (remedying the untidy whiteout alterations)
- 4.The balance of the claim to abide a full hearing on the merits on a date to be fixed at the Registry
- 5.The Claimant, having succeeded in part, was awarded the costs of the application
- Jurisdiction invoked
- Article 162 of the Constitution; Section 33 of the Industrial Court Act 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seth Panyako v Kenyatta National Hospital (Cause 1589 of 2010) (Employment and Labour) [2012] KEIC 17 (KLR)", Case Analysis (2012). Cause No 1589 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2012/17/eng@2012-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.