[2014] KEELRC 1357 (KLR)
The court found that although the verifying affidavit predated the statement of claim, the explanation provided by the Claimant was reasonable and the error was not fatal. The court emphasized the constitutional imperative to administer justice without undue regard to technicalities. Accordingly, the court exercised...
Source-derived case information.
- Citation
- [2014] KEELRC 1357 (KLR)
- Parties
- Applicant: Rupet Odera Ochieng; Respondent: Fairview Hotel Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 192 of 2014
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection/application to Strike Out Claim
- Outcome
- respondent's application dismissed; claim saved subject to filing of further verifying affidavit
- Judges
- L Ndolo
- Legal Topics
- Verifying Affidavit, Pleadings Irregularity, Curable Defect, Striking Out, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rupet Odera Ochieng
Applicant
Fairview Hotel Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection/application to Strike Out Claim
Legal Issues
- 1 Whether the claim should be struck out due to the verifying affidavit predating the statement of claim.
- 2 Whether the error in the pleadings is a curable defect or a fatal flaw.
Ratio Decidendi
The court found that although the verifying affidavit predated the statement of claim, the explanation provided by the Claimant was reasonable and the error was not fatal. The court emphasized the constitutional imperative to administer justice without undue regard to technicalities. Accordingly, the court exercised its discretion to save the claim and allowed the Claimant to file a further verifying affidavit within fourteen days. The Respondent's application to strike out the claim was dismissed.
Court Disposition
respondent's application dismissed; claim saved subject to filing of further verifying affidavit
Orders
- The Respondent's application to strike out the claim is dismissed.
- The Claimant is granted leave to file a further verifying affidavit within fourteen days from the date of the ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
CAUSE NO 192 OF 2014
RUPET ODERA OCHIENG...........................CLAIMANT
VS
FAIRVIEW HOTEL LTD...........................RESPONDENT
RULING
1. The Respondent's application brought by way of Notice of Motion dated 24th March 2014 seeks orders for striking out of the Claimant's claim on the ground that the verifying affidavit sworn by the Claimant on 8th November 2013 purports to verify the averments of a non existent plaint since the Statement of Claim is dated 10th February 2014, after the date of deponement.
2. The Claimant filed grounds of opposition and a replying affidavit on 3rd July 2014 stating that the orders sought by the Respondent are draconian and that the error in the pleadings is curable by amendment.
3. Rule 5(1) of the Industrial Court (Procedure) Rules, 2010 provides as follows:
A statement of claim filed under rule 4 shall be accompanied by anaffidavit verifying the facts relied on.
4. It is not in contest that the Claimant's pleadings carry an error in that the verifying affidavit predates the statement of claim. In the replying affidavit sworn by the Claimant on 1st July 2014, he explains that he read and verified the averments in the Statement of Claim on 8th November 2013 but was unable to raise the filing fees until 10th February 2014, the date appearing on the Statement of Claim.
5. The Court finds this explanation reasonable. Moreover under Article 159(1(d) of the Constitution, the Court is required to administer justice without undue regard to technicalities. I have therefore elected to save the Claimant's claim and grant him leave to file a further verifying affidavit within the next fourteen days from the date of this ruling. The result is that the Respondent's application is dismissed.
6. The costs of this application will be in the cause.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 24TH DAY OF OCTOBER 2014
LINNET NDOLO
JUDGE
Appearance:
Mr. Kenyatta for the Claimant
Mr. Obunde for the Respondent