[2022] KEELRC 4078 (KLR)
The court held that the requirement for a verifying affidavit sworn before a qualified commissioner for oaths is a fundamental procedural requirement. The claimant was required by law to appear before the commissioner for oaths and confirm the contents of her affidavit. Since the commissioner was not qualified to...
Source-derived case information.
- Citation
- [2022] KEELRC 4078 (KLR)
- Parties
- Applicant: Lydia Akinyi; Respondent: Africa Plantation Capital Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 582 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection/application to Strike Out Claim
- Outcome
- statement of claim struck out
- Judges
- J Rika
- Legal Topics
- Verifying Affidavit, Commissioner for Oaths Qualification, Procedural Compliance, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Akinyi
Applicant
Africa Plantation Capital Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection/application to Strike Out Claim
Legal Issues
- 1 Whether the statement of claim is valid where the verifying affidavit was attested by a person not qualified as a commissioner for oaths.
- 2 Whether the lack of a valid verifying affidavit is a technicality or a fundamental breach warranting striking out the claim.
Ratio Decidendi
The court held that the requirement for a verifying affidavit sworn before a qualified commissioner for oaths is a fundamental procedural requirement. The claimant was required by law to appear before the commissioner for oaths and confirm the contents of her affidavit. Since the commissioner was not qualified to practice law at the time of attestation, the purported verifying affidavit was invalid. The absence of a valid verifying affidavit meant that there was no valid statement of claim before the court, as the facts had not been properly verified. The defect was not a mere technicality but a breach of a fundamental requirement under the procedural law governing the court's...
Court Disposition
statement of claim struck out
Orders
- The statement of claim is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
Akinyi v Africa Plantation Capital Limited (Cause 582 of 2017) [2022] KEELRC 4078 (KLR) (29 September 2022) (Ruling)
Neutral citation: [2022] KEELRC 4078 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 582 of 2017
J Rika, J
September 29, 2022
Between
Lydia Akinyi
Claimant
and
Africa Plantation Capital Limited
Respondent
Ruling
1. The verifying affidavit filed with the statement of claim by the claimant, on March 27, 2017, was attested by commissioner for oaths, Shikwe Bernard Otundo, on March 23, 2017.
2. The respondent filed an application dated November 5, 2019, asking the court to strike out the statement of claim and verifying affidavit, on the ground that at the time of attestation, commissioner for oaths, Shikwe Bernard Otundo, was not qualified to practise law.
3. This was confirmed through the advocate’s profile, and letter issued by the Law Society of Kenya dated May 5, 2017, addressed to the respondent’s advocates.
4. The claim answers that she was never informed Otundo was not qualified to practice law, at the time of attestation. The default cannot be visited upon the claimant. It was for the Commissioner to disclose to the claimant’s advocate, that he was not qualified. The claimant was a complete stranger to commissioning of her verifying affidavit. The claimant takes the position that default is a technicality which should not affect her claim.
5. Parties agreed to have the application considered and determined on the strength of their affidavits and Submissions. They confirmed filing and service of Submissions at the last appearance in court on 6th July 2022.
The Court Finds: 6. The court does not accept the submission by the claimant, that she was a stranger to the attestation of her own Affidavit.
7. When her affidavit was sworn, she was legally required to appear before the Commissioner for Oaths, and confirm the contents of her verifying affidavit.
8. An affidavit involves recording of evidence. Evidence is given in the presence of the giver, whether before the court or the commissioner for oaths. The Oaths and Statutory Declarations Act, Cap 15 the Laws of Kenya, requires persons taking oath, to appear before the giver. This why the Affidavit, indicates ‘Before Me.’
9. The act, Cap 15 the Laws of Kenya, requires that a commissioner for oaths is a practising advocate.
10. The Law Society confirmed to the respondent’s advocate, that Otundo was not qualified to practise law, and therefore was not qualified to commission the claimant’s verifying affidavit, at the time the affidavit was allegedly sworn.
11. Rule 4 [2] of the Employment and Labour Relations Court [Procedure] Rules, 2016, states that a statement of claim shall be accompanied by an affidavit verifying the facts relied on.
12. There is no such an affidavit verifying the facts relied on. The claimant instead states she is a stranger to the alleged attestation of her affidavit. A verifying affidavit is a written statement, confirmed by oath, for use as evidence in court. To refer to what was filed by the claimant as a verifying affidavit, is a misnomer. It is an unsworn statement, which at best, is to be equated with a Witness Statement. The default is not a technicality, but breach of a fundamental requirement under the procedural law governing the proceedings of this court. Without a valid verifying affidavit, there is no valid Statement of claim before the court. The facts have not been verified.
13. The court agrees with the respondent that the claim is not validly filed.
14. It is ordered that the statement of claim is struck out with no order on the costs.
DATED SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 29TH DAY OF SEPTEMBER 2022James RikaJudge