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ELRCDismissedNot stated in judgment· [2014] KEELRC 761 (KLR)

James Mangeli Musoo v Ezeetec Limited [2014] KEELRC 761 (KLR)

Industrial Court of Kenya
4 March 2014
DMD.K. Njagi Marete
1,281 words in judgment
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The bottom line

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Kenya's Employment Court ruled that 'no undue regard to technicalities' doesn't excuse skipping formal procedure—you must file a proper application to amend your claim.

What this practically means

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Executive summary

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At a hearing on 25th October 2013 before the Industrial Court, counsel for the claimant, Mr. Maingi, sought leave by oral application to amend paragraph 8 (particularly 8(c)) of the reply dated 23rd July 2013 — changing 'twelve months' to 'twenty five months' salary and deleting references to Ksh.300,000.00 — and to amend paragraph 10(a) to delete Ksh.358,000.00. The claimant premised the application on the contract being a fixed-term contract of 29 months of which only four had been served, and argued that the Industrial Court, as a court of welfare, should act without undue regard to technicalities. Mr. Nzavi, leading Miss Kinyua for the respondent, did not oppose the principle of amendment but objected to the informal mode, urging that the matter had been confirmed for hearing at pre-trial on 4th October 2012 and that an oral amendment at hearing would prejudice the respondent; he asked that a formal application be filed to allow a replying affidavit. Delivering a ruling dated 4th March 2014, the court (D.K. Njagi Marete, Judge) considered Section 20 of the Industrial Court Act and Article 159(2)(d) of the Constitution, and observed that neither defines 'technicality'. The court defined a technicality as a provision of law or procedure inhibiting pleadings or proceedings, and held that the normal practice of amending pleadings by formal application is an appropriate rule of procedure, not a technicality; in any event, the law prohibits only undue regard to technicalities. The oral application was dismissed, with leave to file a formal application to be heard inter partes, and costs on cause.

Key legal issues

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Whether the normal practice of seeking formal application for amendment of pleadings amounts to a procedural technicality that Article 159(2)(d) and Section 20 of the Industrial Court Act permit the court to disregard

Holding

The normal practice of amendment by formal application is an appropriate rule of procedure, not a technicality, and must be observed; the oral application was dismissed.

Reasoning

The court considered the general power of amendment under Section 100 of the Civil Procedure Act and noted that Rule 31(2) of the Industrial Court (Procedure) Rules, 2010 appears to limit the Civil Procedure Act's application, leaving the law unsettled. It nonetheless held that the requirement of a formal application is an appropriate procedural rule, and that even if it were a technicality, only undue regard to it is prohibited. The claimant could still file a formal application to be heard inter partes.

p. 3

Legal principles established

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  • A technicality is a provision of law or procedure that inhibits or limits the direction of pleadings, proceedings and decisions; undue regard to technicalities does not oust technicalities but restricts excessive reliance on them.
  • The constitutional and statutory command is against undue regard to technicalities, not against regard to technicalities as such.

Court orders

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  1. 1.The oral application for amendment of the memorandum of claim is dismissed
  2. 2.The applicant to file a formal application for hearing inter partes
  3. 3.Costs of this application shall be on cause

Authorities

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Legislation

  • Industrial Court ActSection 20(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 100
  • Industrial Court (Procedure) Rules, 2010Rule 31(2)
Jurisdiction invoked
Section 20 of the Industrial Court Act; Article 159(2)(d) of the Constitution of Kenya, 2010

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, "James Mangeli Musoo v Ezeetec Limited [2014] KEELRC 761 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/761/eng@2014-03-04

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