[2019] KEELRC 1243 (KLR)
The court found that Rule 9 of the Oaths and Statutory Declarations Rules requires all exhibits to affidavits to be sealed with the seal of the Commissioner for Oaths and to be serialized. The Claimant/Respondent's Replying Affidavit failed to comply with these mandatory requirements, as the annexures were neither...
Source-derived case information.
- Citation
- [2019] KEELRC 1243 (KLR)
- Parties
- Respondent: Kenya National Union of Nurses; Respondent: Kiambu County Public Service; Respondent: Nyeri County Public Service; Respondent: Laikipia County Public Service Board; Applicant: Kirinyaga County Public Service Board; Respondent: Wycliffe Ambetsa Oparanya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 11 of 2019
- Procedural Posture
- Cause / Ruling on Interlocutory Application Regarding Affidavit Compliance
- Outcome
- Application dated 11th June 2019 granted as prayed with costs to the 5th Respondent/Applicant.
- Judges
- AN Makau
- Legal Topics
- Affidavit Evidence, Procedural Compliance, Statutory Declarations, Public Service Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Union of Nurses
Respondent
Kiambu County Public Service
Respondent
Nyeri County Public Service
Respondent
Laikipia County Public Service Board
Respondent
Kirinyaga County Public Service Board
Applicant
Wycliffe Ambetsa Oparanya
Respondent
Procedural Posture
Cause / Ruling on Interlocutory Application Regarding Affidavit Compliance
Legal Issues
- 1 Whether the Replying Affidavit filed by the Claimant/Respondent complies with Rule 9 of the Oaths and Statutory Declarations Rules.
- 2 Whether failure to seal and serialize annexures to an affidavit is fatal to the affidavit's admissibility.
- 3 Whether the application dated 11th June 2019 should be granted in the absence of a valid defence affidavit.
Ratio Decidendi
The court found that Rule 9 of the Oaths and Statutory Declarations Rules requires all exhibits to affidavits to be sealed with the seal of the Commissioner for Oaths and to be serialized. The Claimant/Respondent's Replying Affidavit failed to comply with these mandatory requirements, as the annexures were neither sealed nor serialized. The court held that this non-compliance was fatal and not a mere technicality that could be cured by Article 159(2)(d) of the Constitution. Consequently, the court expunged the Replying Affidavit from the record, leaving the application by the 5th Respondent/Applicant unopposed. As a result, the application dated 11th June 2019 was granted as prayed, with...
Court Disposition
Application dated 11th June 2019 granted as prayed with costs to the 5th Respondent/Applicant.
Orders
- The Replying Affidavit of the Claimant/Respondent is expunged from the record.
- The application dated 11th June 2019 by the 5th Respondent/Applicant is granted as prayed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CAUSE NO. 11 OF 2019
KENYA NATIONAL UNION OF NURSES....................................CLAIMANT/RESPONDENT
VERSUS
KIAMBU COUNTY PUBLIC SERVICE........................................................1ST RESPONDENT
NYERI COUNTY PUBLIC SERVICE...........................................................2ND RESPONDENT
LAIKIPIA COUNTY PUBLIC SERVICE BOARD......................................3RD RESPONDENT
NYANDARUA COUNTY PUBLIC SERVICE BOARD...............................4TH RESPONDENT
KIRINYAGA COUNTY PUBLIC SERVICE BOARD.........5TH RESPONDENT/APPLICANT
WYCLIFFE AMBETSA OPARANYA............................................................6TH RESPONDENT
RULING
1. The application dated 11th June 2019 is due. Mr. Baraza for the 5th Respondent/Applicant however points out that in view of Rule 9 of the Oaths and Statutory Declarations Act, the replying affidavit of Jane Wangare sworn in opposition of the motion by the 5th Respondent/Applicant is a non-starter. He submitted that the application dated 11th June 2019 is supported by the affidavit of Geoffrey Githinji Kamau sworn on 11th June 2019 together with annexures thereto. He submitted that Claimant/Respondent has filed a Replying Affidavit dated 25th June 2019 and that the Replying Affidavit does not comply with Rule 9 of the Oaths & Statutory Declaration Rules. He asserts that the annexures are not sealed with the seal of a Commissioner for Oaths and the annexures are therefore not proper exhibits. He argues that the annexures should therefore be expunged and in effect if those annexures are expunged, the affidavit is incomplete and the same without the annexures is valueless and should also be rejected. He submitted that failure to seal the annexures with the seal of a Commissioner for Oaths goes to the rules of evidence and is not a mere technicality or something that can be cured by the provisions of Article 159(2)(d). He submitted that the failure to seal annexures and serialize them is fatal and should be expunged. Mr. Lawi for the 6th Respondent was not opposed to the motion and craved leave to file a preliminary objection on the filing of the suit against the 6th Respondent in his personal capacity.
2. Miss Wangare for the Claimant/Respondent submitted about the serialization of the affidavit that she may not have been properly advised but all the annexures that have been annexed emanated from the proceedings. She submitted that the matter has not proceeded without proper service and the affidavits are all on record.
3. The provisions of the Oaths and Statutory Declarations Rules are contained in subsidiary legislation to the Oaths and Statutory Declarations Act, cap. 15 Laws of Kenya. Affidavit evidence is an accepted form of presenting evidence. Under Rule 9 of the Oaths and Statutory Declarations Rules, the law provides as follows:
9. All exhibits to affidavits shall be securely sealed thereto under the seal of the commissioner, and shall be marked with serial letters of identification.
4. The law peremptorily uses ‘shall’ to denote that there is no discretion in the choice of affixing the seal and serializing the exhibits forming part of the affidavit. Without the said seal by the Commissioner there is no proper affidavit before the court. I expunge the offending affidavit. Having expunged the affidavit by the Claimant/Respondent, there is in essence no defence to the motion. The application dated 11th June 2019 by the 5th Respondent/Applicant is therefore granted as prayed with costs to the 5th Respondent.
It is so ordered.
Dated and delivered at Nyeri this 3rd day of July 2019
Nzioki wa Makau
JUDGE
I certify that this is a
true copy of the Original
Deputy Registrar