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IndustrialStruck OutNot stated in the judgment· [2014] KEIC 106 (KLR)

Wamukota v Blowblast Limited (Cause 1261 of 2012) [2014] KEIC 106 (KLR)

Industrial Court of Kenya
30 June 2014
866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out an unfair dismissal claim because the worker never signed the affidavit verifying it, and ordered his lawyers to pay the costs personally.

What this practically means

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Executive summary

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The Claimant sued the Respondent for unlawful dismissal from employment as a machine operator, termination having taken effect without notice on 7th September 2010 after he was accused of involvement in the theft of 500 litres of diesel during offloading. He sought two months' salary in lieu of notice, leave pay for 31 days, weekend overtime for 364 days, service pay for 7 years, 12 months' compensation, costs and interest, and a certificate of service. The Respondent replied that the dismissal was lawful for gross misconduct, denied the alleged salary, and sought dismissal of the suit. The Claimant testified that he had been engaged as a casual from 2004 and formally employed in 2007, that the excess diesel was explained by a faulty lock switch, and that he was not given an opportunity to defend himself as required by Section 41 of the Employment Act 2007, having only been asked to write a confession which he refused. The Respondent called no witness. However, under cross-examination the Claimant admitted he did not execute the verifying affidavit filed with his claim. The court, applying Rules 4 and 5(1) of the Industrial Court (Procedure) Rules 2010 as mandatory provisions, held the verifying affidavit ex facie incompetent, fatally defective and inadmissible, struck it out, and consequently struck out the entire claim with costs, directing that the costs be paid personally by the Claimant's advocates as the parties responsible for the false affidavit.

Key legal issues

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01

Whether a claim founded on a verifying affidavit not sworn by the claimant can proceed

Holding

It cannot; the verifying affidavit was struck out and, with it, the entire claim

Reasoning

The Claimant admitted on oath under cross-examination that he did not execute the verifying affidavit filed in support of his claim. Rules 4 and 5(1) of the Industrial Court (Procedure) Rules 2010 mandate that a statement of claim be accompanied by an affidavit verifying the facts relied on, sworn by the party. The court held those provisions mandatory and treated the unexecuted affidavit as ex facie incompetent and fatally defective, striking out both the affidavit and the claim, with costs on the advocates personally.

p. 2
02

Whether the Claimant was unfairly dismissed contrary to Section 41 of the Employment Act 2007

Holding

Not determined, as the claim was struck out before the merits were reached

Reasoning

The Claimant testified that he was not accorded an opportunity to defend himself as required by Section 41 of the Employment Act 2007, having been implicated in the theft of 500 litres of diesel. The Respondent contended the dismissal was for gross misconduct and that the Claimant declined an opportunity to defend himself. The court did not resolve these competing contentions because the claim was struck out on the verifying affidavit defect.

p. 2

Legal principles established

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  • The provisions of Rules 4 and 5(1) of the Industrial Court (Procedure) Rules 2010 requiring a statement of claim accompanied by a verifying affidavit sworn by the claimant are mandatory, and a verifying affidavit signed by someone other than the claimant is incompetent, fatally defective and inadmissible, warranting striking out of the affidavit and the claim.

Court orders

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  1. 1.The verifying affidavit is struck out
  2. 2.The Claim is struck out with costs
  3. 3.The costs of the suit be paid by the Advocates for the Claimant and not the Claimant

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Industrial Court (Procedure) Rules 2010Rule 4
  • Industrial Court (Procedure) Rules 2010Rule 5(1)

Cases cited (2)

  • Shankar Saklani v DHL Global Forwarding (K) Ltd
    [2012] eKLR
  • Shirika la Kusaidia Watoto wa Kenya & Anor v Rhodah Rop & 4 Others
    [2005] eKLR
Jurisdiction invoked
Employment dispute referred under the Industrial Court (Procedure) Rules 2010 (written law conferring jurisdiction on the Industrial Court)

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, "Wamukota v Blowblast Limited (Cause 1261 of 2012) [2014] KEIC 106 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/106/eng@2014-06-30

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