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Law Society of Kenya v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Co-operatives & Attorney General; Sammy Kipkoech Keter 7 3 others (Interested Parties) [2021] KEELRC 285 (KLR)

Employment and Labour Relations Court
25 November 2021
692 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court struck out a board reinstatement application because it cited the wrong supporting affidavit, showing affidavit defects can sink entire motions.

What this practically means

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Executive summary

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The petitioner filed a Notice of Motion dated 1st April 2021 under sections 4 and 5 of the Fair Administrative Actions Act, Articles 28 and 47 of the Constitution and Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practices and Procedures Rules, 2013, seeking interim orders reinstating the 1st interested party as a member of the Board of the 4th interested party and restraining the respondents from preventing the 1st interested party from exercising his board responsibilities, pending hearing of the petition. The application was supported by an affidavit, but the court observed that while the grounds referred to a Supporting Affidavit of Mercy Wambua, the affidavit actually filed was that of Sammy Kipkoech Keter. Holding that every application must be supported by a valid affidavit, and invoking Rule 17(8) of the ELRC Procedure Rules, 2016 and Rule 19 of the 2013 Constitutional Petition Rules, the court found the affidavit inadmissible for want of form. Relying on Maureen Nyambura Ngigi Warui v Board of Directors, Kenya Power & Lighting Company Limited & 2 others [2020] eKLR, it held the defect was not a curable technicality but went to the root of the application. The court struck out both the motion and the supporting affidavit, leaving the Notice of Motion without evidentiary foundation. The respondents had also challenged the petitioner's locus standi under Articles 22(2)(c) and 258(1)(c) of the Constitution, but the court held those grounds were directed at the defective motion and directed that the petition proceed to be heard on the merits, with replies by the respondents and interested party. No orders on costs were made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application dated 1st April 2021 is properly supported by a valid affidavit
  2. 2.Whether the petitioner has locus standi under Article 22(2)(c) and 258(1)(c) of the Constitution

Key legal issues

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01

Validity of the supporting affidavit to the Notice of Motion

Holding

The supporting affidavit was inadmissible for want of form and non-compliance with the court's rules, and both the motion and affidavit were struck out

Reasoning

The court noted that every application must be supported by a valid affidavit. Under Rule 17(8) of the ELRC Procedure Rules and Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practices and Procedures Rules, 2013, a Notice of Motion must set out its grounds and be supported by an affidavit. Here the affidavit in support (by Sammy Kipkoech Keter) differed from the affidavit stated in the grounds, so the facts were unsupported and the application failed.

p. 2
02

Effect of absence of a valid supporting affidavit

Holding

The absence of a supporting affidavit is not a curable technicality but goes to the foundation of the application, leaving the motion without evidentiary proof

Reasoning

The court held that the defect was fundamental rather than procedural. Without a valid affidavit, the facts relied upon were unsupported, and the Notice of Motion could not stand the test of evidentiary proof required by law. The court relied on Maureen Nyambura Ngigi Warui v Board of Directors, Kenya Power & Lighting Company Limited & 2 others in striking out the defective application.

p. 2
03

Locus standi of the petitioner under Articles 22(2)(c) and 258(1)(c)

Holding

The court declined to determine standing at this stage, noting the Grounds of Opposition were directed at the defective Notice of Motion, and directed that the petition itself be heard on the merits

Reasoning

The respondents challenged the petitioner's standing in their Grounds of Opposition, contending the petition should be struck out under Articles 22(2)(c) and 258(1)(c) of the Constitution. The court observed that these grounds were essentially filed in opposition to the defective Notice of Motion rather than the petition, and directed the respondents and interested party to reply to the petition so it could be heard on the merits.

p. 2

Legal principles established

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  • A Notice of Motion must be supported by a valid affidavit; failure to attach a proper supporting affidavit goes to the root of the application and is not a mere technicality curable by the court

Court orders

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  1. 1.The application dated 1st April, 2021 and its supporting affidavit are struck out for being bad in law
  2. 2.The respondents and interested party shall reply to the petition and the petition shall be heard on the merits
  3. 3.No orders on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 28 and 47 of the Constitution; Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practices and Procedures Rules, 2013; Rule 17(8) of the Employment and Labour Relations Court (Procedure) Rules, 2016

Relief refused

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Interim orders reinstating the 1st interested party as a member of the Board of the 4th interested party and restraining the respondents from preventing the 1st interested party from exercising his responsibilities

The Notice of Motion lacked a valid supporting affidavit - the affidavit filed was by Sammy Kipkoech Keter while the grounds referred to an affidavit of Mercy Wambua - rendering the application and its supporting affidavit inadmissible for want of form

p. 2

Costs

No orders on costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This instant application does not stand the test of law and process. The affidavit in its support is inadmissible for want of form and compliance with the law and the Rules of the court and with regard to constitutional petitions.
p. 2invalidity of supporting affidavit to constitutional application
Failure to attach a Replying Affidavit to the Notice of Motion is not a mere technicality that can be cured by the court. this goes to the roots d foundation of the application. The facts are not supported.
p. 2uncurable defect - affidavit requirement
Accordingly, application dated 1st April, 2021 is hereby struck out. No orders on costs.
p. 2final orders

Issues in the judgment

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minor

The notice of motion seeks reinstatement of the 1st interested party as a board member, yet the 1st interested party is aligned with the petitioner - the relief appears internally inconsistent with the petition's apparent purpose

minor

Judgment states the supporting affidavit is by Mercy Wambua but the affidavit actually filed is by Sammy Kipkoech Keter, a discrepancy the court itself notes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Law Society of Kenya v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Co-operatives & Attorney General; Sammy Kipkoech Keter 7 3 others (Interested Parties) [2021] KEELRC 285 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/285/eng@2021-11-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.