https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1440

Sebastin v Desbro Engineering Ltd (Cause E759 of 2025) [2026] KEELRC 1440 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1440 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E759 of 2025 HS Wasilwa, J May 26, 2026 Between Antony Charles Sebastin Claimant and Desbro Engineering Ltd Respondent Ruling 1.The Respondent/ Applicant filed a Notice of Motion application dated 26th June 2025 seeking orders that: -1.The suit be struck out.2.The costs of this application be provided for. Respondent/Applicant’s Case 2.The Applicant avers that the Claimant is described in the Memorandum of Claim and the verifying affidavit as an Indian national who was formerly employed by the Respondent on a work permit and is resident in Bengaluru, India. 3.The Applicant avers that to the best of its knowledge and belief, the Claimant has been resident in India since his departure from Kenya in the year 2024 and was not physically present in Nairobi or within Kenya at the time the verifying affidavit was purportedly sworn before a Commissioner for Oaths in Nairobi. 4.It is the Applicant’s case that the verifying affidavit, having been commissioned in Nairobi and not notarised, is defective, incompetent and a nullity as it contravenes the legal requirements applicable to affidavits sworn by non-residents. 5.The Applicant contends that the defect in the affidavit is not a mere technicality curable under Article 159(2)(d) of the Constitution, but a substantive irregularity which invalidates the affidavit and consequently renders the entire suit incompetent for want of compliance with Rule 7(3)(a) of the Employment and Labour Relations Court (Procedure) Rules, 2024. 6.It is the Applicant’s case that in the absence of a valid verifying affidavit, the suit has not been properly verified as required by law and is consequently incompetent and liable to be struck out. 7.The Applicant further states that without a valid verifying affidavit, the entire suit amounts to an abuse of the court process. 8.The Applicant avers that it is in the interests of justice that the defective affidavit be struck out so as to save judicial time and resources. Claimant/Respondent’s Case 9.In opposition to the application, the Claimant/Respondent filed a replying affidavit dated 12th September 2025. 10.The Respondent avers that since the time of entry into Kenya as detailed in his affidavit, he has remained within the Republic of Kenya and was physically present in Kenya as at the date of swearing the affidavit. 11.The Respondent states that from the onset that the said application is an abuse of the court process and ought to be struck out and/or dismissed with costs. 12.The Respondent avers that the Applicant’s allegation that he was outside the jurisdiction of the court at the time of swearing the affidavit are wholly unfounded as he was lawfully present in Kenya during the material period. 13.The Respondent states that on 14th and 15th April 2025, his passport was duly endorsed with entry stamps by the Immigration Department of the Republic of Kenya. On 4th July 2025, the Immigration Department endorsed his passport with particulars of Special Pass No. 3213309 under File No. 680048 valid for a period of three months from 13th June 2025 to 12th September 2025, which confirmed his lawful presence in Kenya at all material times. 14.It is the Respondent’s case that the E-Special Pass issued by the Department of Immigration Services on 13th June 2025 further confirmed that he was duly authorised to remain in Kenya up to 12th September 2025. 15.The Respondent further states that in proof of his presence in Kenya, he was accommodated at the Boma Hotel Nairobi and holds a reservation and booking confirmation issued in his name by the said hotel. 16.The Respondent asserts that the impugned affidavit was sworn while he was physically and lawfully present in Kenya and therefore the Applicant’s allegations are baseless, misleading and intended to derail the expeditious determination of the suit. 17.The Respondent contends that it is in the interests of justice that the Applicant’s application be dismissed with costs. Respondent/Applicant’s Submissions 18.The Applicant submitted on three issues: whether from the record of travel in and out of Kenya, the Claimant was present in Kenya on 12th August 2025; whether the verifying affidavit is defective; and whether the suit ought to be struck out on account of a defective affidavit. 19.On the Claimant’s presence in Kenya, it was submitted that the Claimant is an Indian national resident in India and that the verifying affidavit is defective and incompetent as it purports to have been sworn before a Commissioner for Oaths in Nairobi, Kenya whereas the Claimant was not physically present in Nairobi or Kenya at the material time. 20.The Applicant submitted that the Claimant had provided questionable evidence regarding his presence in Kenya. It was argued that the endorsement on the Claimant’s passport showing issuance of a special pass valid from 13th June 2025 to 12th September 2025 did not itself prove that the Claimant was physically present in Kenya during the said period. 21.The Applicant submitted that when the endorsement was juxtaposed with the Boma Hotel reservation, which according to the Applicant was the only document evidencing physical presence in Kenya, it emerged that the Claimant was only in Kenya between 15th June 2025 and 21st June 2025. It was therefore submitted that despite holding a special pass valid for three months, the Claimant was physically present in Kenya for only seven days as demonstrated by the hotel reservation records. 22.On the issue of the defective verifying affidavit, the Applicant submitted that a close examination of the signatures appearing on the verifying affidavit and the replying affidavit revealed significant differences. It was argued that the signature on the verifying affidavit appeared to be a photographed and cropped image affixed onto the affidavit whereas the signature appearing on the replying affidavit appeared to have been physically appended by the deponent before the Commissioner for Oaths. 23.Reliance was placed on of Al-Alyaan Motors Limited & another v Ngala [2023] KEHC 19745 (KLR), where the court dealt with affidavits purportedly sworn in Nairobi while the deponent was domiciled in Germany and held: “While it is true that the courts in Kenya have embraced technology in their operations, and that as a result a lot of changes have been introduced in terms of court operations, it must be emphasized that the deployment of technology must conform to the provisions of the law. As it stands, Section 5 of the Oaths and Statutory Declarations Act requires that an affidavit be sworn at the same place it is commissioned.” 24.The Applicant further submitted that although the Claimant might argue that the courts have embraced technology and electronic signatures are permissible, the question of whether the Claimant was physically present in Kenya at the time of swearing the affidavit remained material. It cited Dardanelli & 6 others v Tilito & 3 others [2025] KEELC 392 (KLR): “However, the contents of an affidavit are statements under oath which may lead to offence of perjury if care is not taken; it is not surprising that affidavits are usually required to be commissioned when a deponent is present and is satisfied that the contents are correct. The Commissioner too needs know if the deponent understands what he is swearing to.” 25.On the second issue, the Applicant submitted that the defect complained of was fundamental and substantive and went to the root of the validity of the affidavit. Reliance was placed on Regina Munyiva Nthenge V Kenya Commercial Bank Ltd [2005] eKLR, where the court dealt with an affidavit purportedly sworn in Machakos but commissioned in Nairobi. The court stated that: “The only conclusion one can reach on looking at this affidavit is that the place the affidavit was sworn and where it was commissioned are two different places. That is irregular and unacceptable and that affidavit is, therefore, fatally defective as it was not sworn in the presence of a Commissioner for Oaths. It is likely that stamp was just affixed. This court would have no alternative but strike off the replying affidavit as it is not properly commissioned ………” 26.The Applicant also relied on In re Estate Dominicus Odhiambo (Deceased) [2020] eKLR where affidavits were sworn in Siaya but commissioned in Kisumu. The court held that:” This is a defect that cannot be remedied by order 19 Rule 7 of the Civil Procedure Rules or Article 159(2) (d) of the Constitution. This is because the defects affect the veracity and probative value of the averments, which goes to the substance of the affidavits and the Petition for grant not being supported by the affidavit in question is no petition at all..” 27.The Applicant therefore submitted that the verifying affidavit ought to be struck out and consequently the suit struck out for want of a valid verifying affidavit. 28.In the alternative, the Applicant urged the court to direct the Claimant to file and serve a compliant verifying affidavit within fourteen days and that costs be awarded to the Applicant. Claimant/Respondent’s Submissions 29.The Respondent submitted on three issues whether the verifying affidavit is defective; whether the alleged defect, if any, is fatal so as to warrant striking out the suit; and who should bear the costs of the application. 30.On the first issue, the Respondent submitted that the gravamen of the application is that the Claimant/Respondent verifying affidavit sworn on 14th July 2025 is defective because the deponent, being a foreign national, was allegedly not physically present in Kenya at the time of commissioning. 31.The Respondent however submitted that the Applicant’s challenge was fundamentally flawed as it was predicated on a misapprehension of facts. It was submitted that contrary to the Applicant’s assertions, the verifying affidavit on record was sworn on 12th August 2025 and not 14th July 2025. 32.The Respondent argued that the Applicant had therefore mounted its challenge against a non-existent affidavit rendering the objection incompetent, speculative and liable to dismissal in limine. 33.It is the Respondent’s submission that pursuant to Sections 107, 108 and 109 of the Evidence Act, the burden of proof lay squarely upon the Applicant to place before the court cogent and conclusive evidence demonstrating his absence from the Court’s jurisdiction at the time of commissioning the verifying affidavit; which the Applicant has failed to discharge. 34.He argued that the Applicant has failed to tender official travel records, immigration data or any conclusive evidence proving that the Claimant was outside the jurisdiction on 12th August 2025, therefore, the allegations remained speculative and incapable of sustaining the drastic orders sought. 35.The Respondent further submitted that on the contrary, he has demonstrated his presence in Kenya at the material time by producing copies of his passport duly endorsed with entry stamps by the Kenyan Department of Immigration in April 2025 together with an E-Special Pass issued on 13th June 2025 valid up to 12th September 2025. 36.It was submitted that the travel records and supporting documentation affirmed that the Claimant was in Kenya during the material period thereby defeating the factual basis of the application. 37.The Respondent submitted that the Applicant’s reliance on hotel reservation records did not discharge the burden of proof and that the alleged departure reflected therein could not be taken as definitive proof that the Claimant had exited the country nor could it exclude the possibility of subsequent re-entry into Kenya, particularly in view of the E-Special Pass valid until 12th September 2025. 38.The Respondent further submitted that during his stay in Kenya, his accommodation arrangements were not confined to hotel accommodation and included periods when he was hosted by friends, thereby explaining the absence of continuous hotel records. 39.It was also submitted that as at 12th September 2025 when the replying affidavit was sworn, the Respondent remained physically present within the Republic of Kenya and significantly, the Applicant had not challenged the veracity of the said affidavit. 40.On whether the alleged defect was fatal, the Respondent submitted that the verifying affidavit on record was not defective and that even if the court were to find otherwise, such defect would not warrant striking out the suit. 41.The Respondent submitted that under Article 159(2)(d) of the Constitution, this court is enjoined to administer justice without undue regard to procedural technicalities. In Microsoft Corporation v Mitsumi Computer Garage Ltd & another [2001] eKLR, Ringera J. stated: “In my opinion, where it is evident that the plaintiff has attempted to comply with the rule requiring verification of a plaint but he has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit.” 42.The Respondent further relied on Simba v Tulu [2025] KEHC 14130 (KLR), where the court held as follows: “I am of the view that defects in a Verifying Affidavit cannot invalidate the suit itself; and invalidating the Verifying Affidavit with a focus to invalidating the suit itself, can be oppressive. Even with the defects in the Verifying Affidavit, I find that this is a proper case for exercising my discretion in the interest of substantive justice and spare this suit from the axe so that it may proceed to trial and be determined on its merits.” 43.It is the Respondent’s submissions that courts have consistently held that defects relating to the form or commissioning of affidavits constitute procedural irregularities which are not fatal and do not go to the substance of the dispute. 44.The Respondent argued that the Applicant is inviting the court to strike out an entire suit purely on a technical objection without demonstrating any prejudice suffered and that such an approach was contrary to the spirit of the Constitution and the overriding objective of the court. 45.On striking out of suits, the Respondent relied on D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another[1980] eKLR where the court held: “No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. Ifa suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.” 46.The Respondent submitted that striking out of a suit is a remedy of last resort and that where a suit discloses even a semblance of a cause of action capable of being cured by amendment, it ought to proceed to hearing on merits. 47.On costs, the Respondent submitted that costs follow the event and relied on Stanley Kaunga Nkarichia v Meru Teachers College & another* [2016] eKLR where the court held that: “As a matter of general principle, costs follow the event and the successful party will always have costs of his success unless the court has good reason to order otherwise.” 48.The Respondent therefore urged the court to find that the verifying affidavit accompanying the Statement of Claim was not defective and that even if any defect existed, the same was not fatal so as to warrant striking out the suit. The Respondent consequently prayed that the application dated 26th August 2025 be dismissed with costs. 49.I have examined all the averments and submissions of the parties herein. The applicants have raised an application on the authenticity of the supporting affidavit filed in court being irregular on the ground that the deponent was out of the country. 50.The respondents contends that the averments by the applicants is incorrect as they were within the country and have exhibited a special E-pass issued by the department of immigration which allowed them to stay in the country up to September 2025. The respondents applicants have not denied this averment. 51.If indeed the applicants have any evidence to counter the respondent’s position they are free to produce it but at the moment, they have made blanket averments without any support therefore and which cannot render the entire suit dismissed. I decline the application sought and dismiss it accordingly. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF MAY, 2026.HELLEN WASILWAJUDGE