Stella Atambo v The Hon. Chief Justice of the Republic of Kenya & Judicial Service Commission
The bottom line
#Kenya's Employment Court ruled that a missing written authority for an affidavit is a fixable mistake, not grounds to strike it out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Replying Affidavit sworn by Muciimi Mbaka on behalf of the 1st respondent should be struck out for lack of authority and impermissible sub-delegation
- 2.Whether a delegate can further delegate the duty to answer for delegated power
- 3.Whether the failure to annex written authority to the deponent's affidavit is fatal
- 4.Whether this is a proper petition under the Employment and Labour Relations Court Act and its Procedure Rules
Key legal issues
#Whether the replying affidavit sworn by an officer of the Office of the Chief Justice without annexed written authority should be struck out
The application to strike out fails; the absence of written authority is a curable irregularity and the 1st respondent was directed to file a supplementary affidavit exhibiting the authority
The court held the Chief Justice's office is constitutional and distinct from its holder. As an employment dispute, the ELRC regime applies, under which an employer may appear through an agent. Written authority is best practice but its absence is not fatal and can be cured, so striking out was unwarranted.
Whether delegatus non potest delegare was breached by the deponent swearing on behalf of the 1st respondent
No breach; the doctrine targets transfer of decisional power, not evidentiary or litigation representation, and the 1st respondent remained accountable
The court accepted the 1st respondent's submission that the deponent decided nothing and exercised no disciplinary power; he merely placed the administrative record before the court. Responsibility for the NTSC remained with the 1st respondent regardless of who deposed to the record.
Which procedural and evidential regime governs the dispute
The ELRC (Procedure) Rules govern, and the Civil Procedure Rules and Evidence Act do not apply before the court
The court characterised the matter as an employment dispute arising from NTSCs issued to a judicial officer. Claims before the ELRC are governed by the ELRC (Procedure) Rules, so the Civil Procedure Act rules and Evidence Act do not apply, undermining the petitioner's Order 19 and hearsay arguments.
Legal principles established
#- An employer may appear before the ELRC through its agent, foreman, manager or factor
- Failure to annex written authority for a deponent appearing for an employer is a curable irregularity, not fatal
- The office of Chief Justice and the person holding it are distinct entities
Court orders
#- 1.The application dated 21 May 2026 is dismissed as without merit
- 2.The 1st respondent shall file a Supplementary Affidavit attaching the necessary authority to its officer attending in these proceedings
- 3.The court invited the parties to address it on whether this is a proper petition
- 4.Interim orders extended for 7 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 10, 47, 50(1), 161, 171 and 172 of the Constitution; Employment and Labour Relations Court Act
Relief refused
#Striking out and/or expunging the Replying Affidavit sworn by Muciimi Mbaka
The failure to file written authority is not fatal and can be cured; the affidavit falls within the Order 19 proviso for information and belief with sources disclosed
Costs of the application
No costs order was made in the petitioner's favour; the application was dismissed
Costs
No costs order made; application dismissed with a direction that the 1st respondent file a Supplementary Affidavit attaching authority
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the application dated 21 May 2026 is without merit and is hereby dismissed. Save that the 1 st respondent shall file a Supplementary Affidavit attaching the necessary authority to its officer attending in these proceedings.
The failure to file the authority with the Replying Affidavit is not fatal. This can be cured accordingly to allow the court to hear the issues in dispute under the petition.
The employer, such as the respondents, may appear before the court through its agent, foreman, manager, or factor.
The person holding the office and the office are two distinct entities.
The interim orders shall be extended for 7 days only to allow the parties to address this aspect of the petition.
Issues in the judgment
#Court applies Order 19 Civil Procedure Rules analysis despite holding those rules do not apply before the ELRC
Cause title formatting garbled: 'TH JUDICIAL SERVICE COMMISSION' split across lines
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stella Atambo v The Hon. Chief Justice of the Republic of Kenya & Judicial Service Commission", Case Analysis (2026). Petition No. E125 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2683/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.