https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1978

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E1102 OF 2025** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **ZHANG SHENGHAN......………………………………........CLAIMANT** **VS** **SHANXI DIKUANG OVERSEAS ENGINEERING** **CONSTRUCTION (KENYA) LIMITED...................1ST RESPONDENT SHANXI GEOLOGICAL ENGINEERING** **EXPOLORATION INSTITUTE LIMITED...............2ND RESPONDENT** **RULING** 1. The Respondent/ Applicant filed a Notice of Motion application dated 15th December 2025seeking orders:- 2. *THAT the Verifying Affidavit sworn on 1st November 2025 be struck out and expunged from the record.* 3. *THAT the Statement of Claim dated 7" November 2025 and all pleadings founded thereon be struck out.* 4. *Costs of this application be provided for.* 5. The Respondent/ Applicant further filed a Notice of Motion application dated 25th September 2026 seeking orders: - 6. *THAT the Amended Statement of Claim dated 10th February 2026 together with the verifying affidavit sworn on 29th January 2026, be struck out in limine.* 7. *THAT the costs of this application be paid by the Respondent.* **Respondent/Applicant’s Case** 1. The Applicant avers that the Verifying Affidavit dated 1st November 2025 predates the Statement of Claim dated 7th November 2025. 2. It is the Applicant's case that the affidavit, being a foreign document, is neither authenticated by the Ministry of Foreign Affairs of China nor legalised by the Kenyan Embassy or High Commission, as required for foreign documents to be admitted in Kenyan courts. 3. The Applicant further avers that the Verifying Affidavit does not contain the mandatory averment that there is no other suit pending and that there has been no previous litigation between the parties over the same subject matter, contrary to the Civil Procedure Rules, and contends that this omission renders the affidavit defective, incomplete, and incapable of validating the pleadings, such a statutory pre-condition being essential to the proper institution of a suit. 4. It is the Applicant's case that the affidavit is additionally not witnessed by a person authorised to administer oaths, and that the entire Statement of Claim is accordingly fatally defective for want of a proper verifying affidavit as required by law. 5. The Applicant asserts that it is in the interests of justice and the integrity of the court that the offending pleadings be struck out with costs. 6. The Applicant avers that the Claimant had initially filed a Statement of Claim dated 3rd July 2025 together with a verifying affidavit which was defective and incompetent in law. 7. The Applicant avers that upon being served with the said pleadings, it filed an application seeking to strike out the Statement of Claim on account of the defective verifying affidavit, and that faced with this application, the Claimant withdrew the entire suit. 8. The Applicant further avers that the Claimant subsequently proceeded to file a fresh Statement of Claim dated 7th November 2025, commencing fresh proceedings against it based on substantially the same cause of action, and upon service of this second Statement of Claim, the Applicant again filed an application seeking to strike out the pleadings for being defective and incompetent. 9. It is the Applicant's case that while this application remained pending determination, the Claimant purported to amend the Statement of Claim and filed a fresh verifying affidavit, and that the purported amendment was done solely with the intention of defeating the Applicant's pending application and sanitising a fundamentally defective suit. 10. The Applicant contends that the Claimant has not furnished this court with any reasonable or lawful grounds to justify the amendment, and that it was made in bad faith, amounting to an abuse of the process of the court. 11. It is the Applicant’s case that a verifying affidavit is a mandatory requirement when filing a suit; that a suit filed with a defective verifying affidavit is incompetent from its inception; that a verifying affidavit is not a pleading capable of substitution through an amended Statement of Claim; and that a claimant cannot retroactively cure a defective suit by way of amendment. 12. On this basis, the Applicant asserts that the Claimant's conduct in filing defective pleadings, withdrawing suits, refiling, and amending pleadings so as to defeat pending applications amounts to an abuse of the court process and is highly prejudicial to it. 13. It is the Applicant's case that unless the Amended Statement of Claim is struck out, it shall continue to suffer prejudice and unnecessary litigation costs. **Claimant/Respondent’s Case** 1. In opposition to the application dated 15th December 2025, the Claimant/Respondent filed a replying affidavit dated 20th February 2026. He further filed a replying affidavit both dated 9th February 2026 in opposition to the second application. 2. The Respondent avers that the Memorandum of Claim dated 7th November 2025 and the Verifying Affidavit dated 1st November 2025 have been overtaken by events and/or rendered spent since the Amended Memorandum of Claim was filed on 12th February 2026. 3. The Respondent asserts that it is common knowledge that once an amended pleading is filed, it becomes the operative pleading before the court and is used in making the final decision, such that the initial pleading is considered spent. 4. It is the Respondent's case that the application dated 15th December 2025 has been overtaken by events. 5. In opposition to the second application, the Respondent avers that he filed a Notice to Withdraw the Suit before the Magistrate's Court in MCELRC No. E1650 of 2025 upon realising that the said Court lacked the requisite pecuniary jurisdiction to hear and determine the matter. 6. The Respondent avers that he properly filed an Amended Memorandum of Claim dated 10th February 2026 pursuant to Rule 34 of the Employment and Labour Relations Court (Procedure) Rules, 2025, which permits amendment of pleadings without leave before the close of pleadings, and that since the Applicant had not filed any Response to the Memorandum of Claim, pleadings had not closed within the meaning of the Rules. 7. The Respondent contends that it is trite law that once an amended pleading is filed, it supersedes the original pleading and becomes the operative pleading before the Court, such that the Memorandum of Claim dated 7th November 2025 and the Verifying Affidavit dated 1st November 2025 were rendered spent upon the filing of the Amended Memorandum of Claim on 12th February 2026. 8. She asserts that the allegation of a defective or amended verifying affidavit is misplaced, the Amended Memorandum of Claim being duly supported by a Verifying Affidavit dated 29th January 2026 in compliance with the Rules. 9. The Respondent further contends that the Applicant's Application is fatally defective and incompetent, being premised on provisions of the Employment and Labour Relations Court (Procedure) Rules, 2016, which have since been revoked and are no longer in force. 10. It is the Respondent's case that the Application is brought in bad faith and is calculated to defeat her claim on procedural technicalities, contrary to Article 159(2)(d) of the Constitution of Kenya, 2010. 11. The Respondent asserts that it is in the interests of justice that the Application be dismissed with costs to her. 12. In further opposition of the application dated 25th February 2026, the Respondent filed grounds on opposition dated 3rd March 2026 on the following grounds: 13. *THAT the Application is fatally and incurably defective for having been brought under Rules 17 and 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, which Rules were revoked and are no longer in force.* 14. *THAT the Application is incompetent, misconceived, and bad in law for want of proper anchorage under the prevailing Employment and Labour Relations Court (Procedure) Rules, 2025.* 15. *THAT the Applicants have failed to invoke the correct provisions of the law and the Honourable Court cannot exercise its discretion on the basis of repealed procedural provisions.* 16. *THAT the Application amounts to an abuse of the court process and is intended to delay the just and expeditious determination of this Cause.* 17. *THAT it is in the interest of justice that the Respondents/Applicants’ Notice of Motion dated 25th February, 2026 be dismissed with costs to the Claimant/Respondent.* **Applicant’s Submissions** 1. The Applicant submitted on four issues: whether the Statement of Claim dated 7th November 2025 is incompetent for being accompanied by a defective verifying affidavit; whether the defect in the verifying affidavit can be cured through the Amended Statement of Claim dated 10th February 2026 together with a fresh verifying affidavit; whether the conduct of the Claimant in filing defective pleadings, withdrawing suits and subsequently amending pleadings amounts to an abuse of the court process; whether the Statement of Claim dated 7th November 2025 and the Amended Statement of Claim dated 10th February 2026 ought to be struck out. 2. On the first issue, the Applicant submitted that a verifying affidavit is a mandatory requirement accompanying pleadings under Rule 7(3)(a) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which provides:*"A statement of claim filed under subrule (1) shall be accompanied by an affidavit verifying the correctness of the facts in the statement of claim."* 3. The Applicant argued that the verifying affidavit relied upon predates the pleading it purports to verify, being dated 1st November 2025 against a Statement of Claim dated 7th November 2025, and that since the purpose of a verifying affidavit is to confirm the correctness of a pleading's contents, verification must logically and legally occur after or contemporaneously with the pleading being verified. 4. Reliance was placed on [***James Waithumbi Kimotho & 2 others v Robert Mwangi Kiberenge & another [2004] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2004/980/eng%402004-12-10)where the court found: *“Accordingly, I must find, as I hereby do, that the three affidavits sworn by the Plaintiffs on 27th May, 2002 purporting to verify the Plaints dated 17th July, 2002, in fact verified nothing as the Plaints were not in existence. All the three Verifying Affidavits are therefore struck out.”* 5. It is the Applicant’s submission that an affidavit sworn before the pleading exists cannot in law verify the contents of that pleading. Therefore, the verifying affidavit in the present case fails to serve its intended legal purpose. 6. The Applicant submitted that the verifying affidavit is a foreign document sworn outside Kenya that has not been authenticated by the Ministry of Foreign Affairs of China nor legalized by the Kenyan Embassy or High Commission, contrary to the procedure for admission of foreign documents under sections 82(g) and 92 of the Evidence Act, Cap. 80. 7. The Applicant argued that while Kenyan courts may admit affidavits sworn within Commonwealth jurisdictions without strict proof of authentication, that latitude does not extend to non-Commonwealth jurisdictions such as the People's Republic of China, which does not operate within the common law or Commonwealth framework, such that documents originating therefrom must strictly comply with the authentication and legalisation requirements, failing which they remain inadmissible. 8. It was also submitted that the affidavit is not witnessed by a person authorised to administer oaths as required under section 8 of the Oaths and Statutory Declarations Act, Cap. 15, and, further, it omits the mandatory averment that there is no other suit pending and no previous litigation between the parties over the same subject matter, a statutory safeguard against multiplicity of suits, the omission of which renders the affidavit incomplete and legally defective. 9. The Applicant placed reliance on Order 19 Rule 6 of the Civil Procedure Rules, empowering the court to strike out from any affidavit matter that is scandalous, irrelevant, or oppressive. It further relied on [***Moretti & 6 others v Tirito & 3 others [2026] KEELC 1113 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1113/eng%402026-02-26), where the court held: *"an affidavit must be properly commissioned or notarized if it is to be used in solemn proceedings of the court."* 10. The Applicant submitted that the requirement for a verifying affidavit is not cosmetic but goes to the competence of the suit, such that a claim filed with a fundamentally defective verifying affidavit is incompetent from the outset and cannot properly invoke the jurisdiction of the Court. 11. On the second issue, it was submitted that faced with the application dated 15th December 2025, the Claimant purported to amend the Statement of Claim and filed a fresh verifying affidavit together with the Amended Statement of Claim dated 10th February 2026, but that the amended verifying affidavit is itself incompetent, as the law does not permit amendment of affidavits. 12. In support thereof, the Applicant cited [***Jones v Kisangi & another [2025] KEMC 38 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/38/eng%402025-03-12), where the court held: *“I thus find merit in the ground raised by the Respondent that the applicant cannot amend his evidence comprised in an affidavit. The amended supporting affidavit of Abednego Mutua Kisangi is hereby struck of for the aforesaid reasons.”*. 13. It submitted that while Order 8 Rule 1 of the Civil Procedure Rules permits amendment of pleadings, a verifying affidavit is not itself a pleading but a foundational document that must accompany a pleading at the time of filing, such that the defect goes to the competence of the suit and cannot be retrospectively cured through amendment. This position was fortified by [***Microsoft Corporation v Mitsumi Computer Garage Ltd & another [2001] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2001/846/eng%402001-07-02), which emphasized that a verifying affidavit forms part of the initial pleadings and must accompany the plaint at filing. 14. It was argued that the Claimant's attempt to introduce a new verifying affidavit through an amended pleading amounted to an attempt to retrospectively validate a suit incompetent at inception, a procedure not recognized in law. 15. On the third issue, the Applicant submitted that the record shows that the Claimant first filed ELRC Cause No. 1650 of 2025 with defective pleadings dated 7th June 2025; when faced with an application to strike out the suit, the Claimant withdrew the entire Claim; the Claimant then filed a fresh suit dated 7th November 2025 based on substantially the same cause of action; upon the Respondents filing another application to strike out the claim, the Claimant purported to amend the pleadings and filed a fresh verifying affidavit. 16. It is the Applicant’s submission that this conduct amounts to a clear abuse of the court process. It maintains that this pattern demonstrated a deliberate attempt to evade fundamental requirements and defeat the Applicant's legitimate objections, conduct which the courts have repeatedly condemned. It cited [***Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/6100/eng%402018-06-21), where the court held that abuse of court process occurs where litigation is used improperly to harass or frustrate an opposing party. 17. The Applicant submitted that the Claimant's conduct of filing defective pleadings, withdrawing suits, refiling them repeatedly, and attempting to cure them only after challenge, fell squarely within the definition of vexatiousness, frivolousness, and abuse of court process. Courts are obligated under sections 1A, 1B, and 3A of the Civil Procedure Act, which vest the Court with inherent power to prevent abuse of its process and ensure the efficient administration of justice, to prevent litigants from manipulating procedural rules to the prejudice of other parties and the waste of judicial time. 18. On the final issue, it was submitted that the pleadings before this Court are fatally defective as the Applicant has demonstrated: that the Statement of Claim was filed with a defective verifying affidavit, that the defect cannot be cured through amendment, and that the Claimant's conduct amounts to an abuse of the court process. 19. It is the Applicant’s submission that the Court has jurisdiction to strike them out to uphold the integrity of the judicial process. **Claimant/Respondent’s Submissions** 1. The Respondent submitted on two issues: whether the Amended Statement of Claim dated 10th February 2026 together with the Verifying Affidavit sworn on 29th January 2026 should be struck out in *limine*; and whether the Notice of Motion dated 15th December 2025 has been overtaken by events. 2. On the first issue, the Respondent submitted that Rule 7(1)(e) of the Employment and Labour Relations Court (Procedure) Rules, 2025 requires a statement on whether there have been no previous or pending suits between the same parties over the same subject matter. Additionally, Rule 34 of the same Rules permits a party to amend pleadings before service or before the close of pleadings. 3. The Respondent further relied on [***Joseph Kipkirui Mutai v Richard Kibet & another [2015] KEHC 4697 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/4697/eng%402015-06-02), where the court held: *“What is the purpose of the provision for amendments in the law? Its to enable parties correct any errors, omissions etc so as to bring before the Court all the relevant material to enable the Court arrive at a just decision.”*. 4. It is the Respondent’s submission that the Memorandum of Claim and Verifying Affidavit dated 7th and 1st November 2025 respectively had been overtaken by events and rendered spent, as the Amended Memorandum of Claim filed on 12th February 2026 was filed to correct the apparent error of not disclosing the previously withdrawn suit, MILIMANI MCELRC No. E1650 of 2025, and to align the pleading with Rule 7(1)(e). 5. It was submitted that the amendment did not offend Rule 34, since the Applicants have not filed any response to the Memorandum of Claim, therefore, pleadings have not closed within the meaning of the said rules. The same was filed in timeously and in good faith as required by the law. 6. The Respondent submitted that the amendments introduced will not occasion any form of prejudice to the Respondent/Applicants, as the same does not in any way change and/or introduce a new or inconsistent cause of action or issue. Additionally, the Amended Memorandum of Claim, does not affect any vested interest or accrued legal right or occasion any form of injustice to the Applicant, for they shall have a right to respond to the same. 7. He submitted that it is trite law that an amended pleading supersedes and becomes the operative pleading before court. Therefore, the Notice of Motion dated 15th December 2025 ought to be considered overtaken by events. 8. It was submitted that the allegation of a defective or improperly amended verifying affidavit was misplaced, since the Amended Memorandum of Claim was duly supported by a Verifying Affidavit dated 29th January 2026 in compliance with the Rules. 9. The Respondent further submitted that the Notice of Motion dated 25th February 2026 was fatally defective and incompetent for being premised on the Employment and Labour Relations Court (Procedure) Rules, 2016, which have since been revoked and are no longer in force, such that the Court could not exercise discretion on the basis of repealed procedural provisions, and that the application had accordingly been brought in bad faith calculated to defeat the Respondent's claim on procedural technicalities, contrary to Article 159(2)(d) of the Constitution. 10. On costs, he submitted that costs follow the event unless the court, for good reason, directs otherwise, as provided under Section 27(1) of the Civil Procedure Act. 11. I have examined all the averments and submissions of the parties herein. I note that the applicant herein filed his 1st application dated 15th December 2025. He filed a further application dated 25th February 2026. The 1st application was filed under rule 7(B) of the Employment and Labour Relations Court rules, Order 2 Rule 75, Order 4 Rule 1 of the Civil Procedure Rules and section 5 of the Oaths and Statutory Declarations Act and other enabling provisions of law. 12. The 2nd application was filed under Rule 17 and Rule 33 of the ELRC (Procedure Rules), 2016. Section 1A, 1B, 3A of the Civil Procedure Rules Act and all other enabling provisions of the law. 13. The claimant had filed his claim on 12/11/2025. Previously, the claimant had filed a claim at the CM’s Milimani Commercial Courts being no E1650/25. This claim was withdrawn vide a notice of withdrawal of suit dated 7th November 2025. It is therefore apparent that by the time this claim was filed on 7/11/2025, the CM’S civil suit no E1650/25 had already been withdrawn. An amended claim was also filed on 10th February 2026. 14. Upon service of these pleadings the respondent proceeded to file a notice of appointment of advocates on 1st December 2025 and the subsequent 2 applications dated 15th December 2025 and 25th February 2026. No defence was filed. Since pleadings had not been closed at the time the act of withdrawing the suit was done as per the procedure provided under rule 64 of the ELRC (procedure) Rules 2024 which states as follows: **(1)** **At any-time in a pending suit or application a party may, by an oral application before Court or by notice in writing, which notice shall be served on all parties, wholly or partially, discontinue the suit or application, as the case may be, against all or any of the respondents.** **(2) Where a suit or application is wholly or partially withdrawn, the Court may grant costs to the other party as may be considered appropriate.** 1. Upon withdrawal of the said suit, the respondent claimant proceeded to file another claim and then an amended claim. This was also done within the law as per rule 34 of ELRC (procedure) rules 2024 which states as follows: **A party may amend pleadings before service or before the close of pleadings: Provided that after the close of pleadings, the party may only amend pleadings with the leave of the Court on oral or formal application, and, the other party shall have a corresponding, right to amend its pleadings.** 1. As concerns the 2nd application, it is filed under the wrong provisions of law being filed under the ELRC (procedure) rules 2016 which were repealed by the 2024 rules amongst other provisions of the Civil Procedure Rules. 2. Other than that fact, the act of filing an amended claim is still within the law as stated above. Where there is a defect in pleadings filed if at all, these can be cured through amendments of pleadings as held by AG Ringera J ( as he then was) in **Microsoft Corporation vs Mitsumi Computer Garage Ltd Mitsumi (Kenya) Ltd CC No. 810/2001** and cannot warrant the striking out of a suit. 3. The upshot of my ruling is that the two applications by the respondents cannot stand for the reason given herein. I decline to strike out the cause herein. Costs in the cause. **Dated, Signed and Delivered virtually at Nairobi this 14th Day of July 2026.** **HELLEN WASILWA** **JUDGE**