[2015] KEELRC 406 (KLR)
The court found that the Claimant's affidavit filed on 23rd July 2015 was irregular because it sought to respond to the Preliminary Objection by adducing facts, rather than confining itself to the pleadings. The court agreed with the Respondent that the proper procedure required the Claimant to restrict his response...
Source-derived case information.
- Citation
- [2015] KEELRC 406 (KLR)
- Parties
- Claimant: Andrew Musila Nzai; Respondent: Memon Education Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 369 of 2015
- Procedural Posture
- Employment Cause / Interlocutory Ruling on Preliminary Objection and Affidavit
- Outcome
- Interlocutory orders granted; Claimant's affidavit struck out; directions for written submissions on Preliminary Objection.
- Legal Topics
- Preliminary Objection, Affidavit Striking Out, Written Submissions, Pleadings, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Musila Nzai
Claimant
Memon Education Board
Respondent
Procedural Posture
Employment Cause / Interlocutory Ruling on Preliminary Objection and Affidavit
Legal Issues
- 1 Whether the Claimant's affidavit filed on 23rd July 2015 is properly before the court.
- 2 Whether the Preliminary Objection should be disposed of by way of written submissions.
Ratio Decidendi
The court found that the Claimant's affidavit filed on 23rd July 2015 was irregular because it sought to respond to the Preliminary Objection by adducing facts, rather than confining itself to the pleadings. The court agreed with the Respondent that the proper procedure required the Claimant to restrict his response to his pleadings. As the Claimant was absent and had been duly served with both the Application and Hearing Notice, the Application was unchallenged. Consequently, the court struck out the Claimant's affidavit and directed that the Preliminary Objection be disposed of by way of written submissions, setting timelines for both parties to file and serve their submissions.
Court Disposition
Interlocutory orders granted; Claimant's affidavit struck out; directions for written submissions on Preliminary Objection.
Orders
- The affidavit filed by the Claimant on 23rd July 2015 is struck out.
- The Preliminary Objection shall be disposed of by way of written submissions.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT AT MOMBASA
CAUSE NUMBER 369 OF 2015
BETWEEN
ANDREW MUSILA NZAI….…………….………………..………. CLAIMANT
VERSUS
MEMON EDUCATION BOARD……………..…….……………RESPONDENT
RULING
In the absence of the Claimant, who was served with both Application and Hearing Notice, the Court finds the Application dated 17th September 2015 is unchallenged.
The Affidavit filed by the Claimant on 23rd July 2015 is irregular as it seeks to respond to the Preliminary Objection, by way of adducing facts.
The Court agrees with the Respondent, that the Claimant should have restricted himself to his Pleadings. IT IS ORDERED:-
The Affidavit filed by the Claimant on 23rd July 2015 is struck out.
The Preliminary Objection be disposed of by way of Written Submissions.
The Respondent shall file and serve its Submissions within the next 14 days.
The Claimant to file and serve his Submissions within 14 days of service.
Mention on 3/12/2015.
This Order be extracted and served Upon the Claimant by the Respondent within 14 days.
Dated and delivered at Mombasa this 14th day of October, 2015
James Rika
Judge