Wamukota v Blowblast Limited (Cause 1261 of 2012) [2014] KEIC 106 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a claim founded on a verifying affidavit not sworn by the claimant can proceed
It cannot; the verifying affidavit was struck out and, with it, the entire claim
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.
Whether the Claimant was unfairly dismissed contrary to Section 41 of the Employment Act 2007
Not determined, as the claim was struck out before the merits were reached
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.
Legal principles established
#- 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
#- 1.The verifying affidavit is struck out
- 2.The Claim is struck out with costs
- 3.The costs of the suit be paid by the Advocates for the Claimant and not the Claimant
- Jurisdiction invoked
- Employment dispute referred under the Industrial Court (Procedure) Rules 2010 (written law conferring jurisdiction on the Industrial Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.