[2022] KEELRC 969 (KLR)
The court found that the claimant failed to comply with its order of 16th October 2020, which required the filing of a proper verifying affidavit within 30 days. The purported second verifying affidavit was not shown to have been filed within the required period, nor was it properly brought to the court's attention...
Source-derived case information.
- Citation
- [2022] KEELRC 969 (KLR)
- Parties
- Claimant: Emmanuel Obingo Okumu; Respondent: Pastor Eliezer Kiratu; Respondent: Supervisor Florence Ochieng; Respondent: The Manager, Kenya Assemblies of God Olympic and Childlife Vocational Training Centre Olympic
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2362 of 2016
- Procedural Posture
- Employment Cause / Ruling on Compliance With Court Order Regarding Verifying Affidavit
- Outcome
- claim struck out
- Judges
- J Rika
- Legal Topics
- Verifying Affidavit, Striking Out Pleadings, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Obingo Okumu
Claimant
Pastor Eliezer Kiratu
Respondent
Supervisor Florence Ochieng
Respondent
The Manager, Kenya Assemblies of God Olympic and Childlife Vocational Training Centre Olympic
Respondent
Procedural Posture
Employment Cause / Ruling on Compliance With Court Order Regarding Verifying Affidavit
Legal Issues
- 1 Whether the claimant complied with the court's order to file a proper verifying affidavit within 30 days of the ruling dated 16th October 2020.
- 2 Whether the absence of a compliant verifying affidavit warrants striking out the claim.
Ratio Decidendi
The court found that the claimant failed to comply with its order of 16th October 2020, which required the filing of a proper verifying affidavit within 30 days. The purported second verifying affidavit was not shown to have been filed within the required period, nor was it properly brought to the court's attention during the relevant hearing. The absence of a compliant verifying affidavit constituted a fundamental defect in the claim, justifying the striking out of the claim despite the court's previous accommodation of the claimant's procedural lapse.
Court Disposition
claim struck out
Orders
- The claim is struck out.
- No order on the costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT NAIROBI
CAUSE NUMBER 2362 OF 2016
BETWEEN
EMMANUEL OBINGO OKUMU ........................ CLAIMANT
VERSUS
1. THE PASTOR ELIEZER KIRATU
2. SUPERVISOR FLORENCE OCHIENG
3. THE MANAGER, KENYA ASSEMBLIES OF GOD
OLYMPIC AND CHILDLIFE VOCATIONAL TRAINING
CENTRE OLYMPIC ..........................................RESPONDENTS
RULING
1. The Claimant filed his Claim in person, on 22nd November 2016.
2. He has since engaged Counsel.
3. His initial Verifying Affidavit was not dated.
4. The Claim was challenged on this ground by the Respondent.
5. In a Ruling dated 16th October 2020, the Claimant was given by the Court, 30 days to rectify the anomaly by filing a proper Verifying Affidavit.
6. Dispute has arisen as to whether the Claimant complied with the Ruling of 16th October 2020.
7. The Court undertook to study the record, and issue further orders today.
8. There is another Verifying Affidavit, sworn by the Claimant on 22nd November 2016. This was before the Ruling.
9. It is not indicated on which date it was received in Court. It has no stamp of the Court. It is a photocopy. It is different from the Verifying Affidavit filed with the Claim, on 22nd November 2016 which was found to be defective. The defective Affidavit was sworn before Commissioner for Oaths Enonda A.M. Dickson, while the second one is indicated to have been sworn before Commissioner for Oaths Samson Kinyanjui. Did the Claimant swear 2 different Verifying Affidavits, before different Commissioners, on 22nd November 2016? Why did he not submit on the second Affidavit, during the hearing leading to the Ruling of 16th October 2020, if the second Affidavit was on record from 22nd November 2016?
10. In the end the Claimant has not shown compliance to the Ruling of 16th October 2020. There is no Verifying Affidavit on record, sworn and filed within 30 days of the Ruling. The Claimant has failed to rectify a fundamental defect to his Claim, even after the Court accommodated him.
IT IS ORDERED: -
a. The Claim is struck out.
b. 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 28TH DAY OF JANUARY 2022.
JAMES RIKA
JUDGE