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Court of AppealAllowedCivil Appeal (Notice of Motion dated 15th November 2016) - number not stated in judgment· [2017] KECA 298 (KLR)

Gakuo & another v County Government Of Nairobi & another (Civil Appeal (Application) 201 of 2016) [2017] KECA 298 (KLR)

Court of Appeal of Kenya
29 September 2017
2,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you can amend a memorandum of appeal to fix genuine errors like a wrong salary figure, provided the other side suffers no real injustice.

What this practically means

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Executive summary

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The applicants, former county executives of the County Government of Nairobi whose services were terminated on 7th October 2014, obtained judgment in the Employment and Labour Relations Court awarding each of them Ksh. 904,448.00 with interest and costs, compensation being calculated as twelve months' gross salary. Aggrieved by the quantum, they filed a Notice of Appeal and a memorandum of appeal raising three grounds, principally that the trial judge erred in assessing compensation. Before case management, they moved the Court of Appeal under Rule 44 seeking leave to amend the memorandum of appeal to introduce a ground that the judge wrongly used the October payslip figure (covering only seven days worked before termination) rather than the true monthly gross salary of Ksh. 304,375.00, as evidenced by the appointment letter and September payslip. The respondents opposed, contending the amendment introduced a fresh cause of action and would prejudice them. The Court applied the established principles from Eastern Bakery v Castelino, Uhuru Highway Development Ltd v Central Bank of Kenya and Wareham v Kenya Post Office Savings Bank, holding that a memorandum of appeal is a pleading amenable to amendment; that amendments sought before hearing should be freely allowed absent injustice curable by costs; and that this amendment merely corrected a genuine mistake without substituting a new cause of action. The Court stressed the amendment was not a finding on the merits. The application was allowed with no order as to costs.

Key legal issues

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01

Whether a memorandum of appeal can be amended

Holding

Yes. The court proceeded on the premise that a memorandum of appeal is a pleading like any other, citing Uhuru Highway Development Ltd v Central Bank of Kenya.

Reasoning

The court noted the point was not contested and adopted the earlier holding that a memorandum of appeal is always amenable to amendment subject to the interests of justice. The rules on amendment of pleadings therefore apply to a memorandum of appeal.

p. 3
02

The principles governing amendment of pleadings

Holding

Amendments should be freely allowed before hearing if made without injustice, which can be compensated by costs; but the court cannot permit substitution of one cause of action for another or a change in the subject matter of the suit.

Reasoning

Relying on Eastern Bakery v Castelino and Halsbury's Laws of England (as cited with approval in Wareham v Kenya Post Office Savings Bank), the court set out the criteria: good faith, materiality to the real question in controversy, no prejudice to the other side, and whether injustice can be cured by costs.

p. 3
03

Whether the proposed amendment introduced a fresh cause of action

Holding

No. The amendment merely corrected the monthly gross salary figure (Ksh. 304,375.00 from the September payslip and appointment letter) instead of the October figure covering only seven days worked, based on the same facts.

Reasoning

The ELRC Judge had intended to award twelve months' gross salary but used the October payslip figure representing one week's salary. The appointment letter and September payslip showed the true monthly gross salary. The claim was always for compensation based on monthly salary, so no new cause of action was introduced. The amendment paves the way to argue the point on appeal but is not a finding on the merits.

p. 4

Legal principles established

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  • A memorandum of appeal is a pleading and, subject to the interests of justice, is amenable to amendment on the same principles governing amendment of pleadings.
  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.
  • The court will not allow an amendment that substitutes one distinct cause of action for another or changes the subject matter of the suit.
  • An amendment correcting an erroneous figure relied on by the trial court, based on the same facts and made before the appeal is set down for hearing, does not introduce a fresh cause of action.

Court orders

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  1. 1.Leave granted to amend the memorandum of appeal to introduce the ground challenging the use of Ksh. 66,213.70 instead of Ksh. 304,375.00 as gross monthly salary in assessing compensation
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27(1), (2) and (3)
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 260(h)
  • County Government Actnot specified (referred to as 'County Government Act Cap 2012(sic)')
  • Employment Act2007 (not specified further)
  • Employment and Labour Relations Court Actnot specified
  • Rules of the Court of AppealRule 44

Cases cited (3)

  • Uhuru Highway Development Ltd vs Central Bank of Kenya
    (2002) 1 EA 314
  • Eastern Bakery vs Castelino
    (1958) E.A. 461
  • Wareham t/a AF Wareham & 2 others vs Kenya Post Office Savings Bank
    Civil Appeal Nos. 5 & 48 of 2002
On appeal from
Employment and Labour Relations Court (petitions originally filed in the High Court and transferred to the ELRC)
not stated (petition dated 24th April 2015)
Jurisdiction invoked
Rule 44 of the Court of Appeal Rules (appellate jurisdiction over the pending appeal)

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, "Gakuo & another v County Government Of Nairobi & another (Civil Appeal (Application) 201 of 2016) [2017] KECA 298 (KLR)", Case Analysis (2017). Civil Appeal (Notice of Motion dated 15th November 2016) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/298/eng@2017-09-29

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