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ELRCDismissedApplication dated 20th May 2015 in Claim filed 24th May 2011· [2015] KEELRC 8 (KLR)

Esther Mutai v David Mulwa & 3 others [2015] KEELRC 8 (KLR)

Employment and Labour Relations Court
24 November 2015
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to let a worker add a retirement claim to an old case, ruling courts cannot revive issues they have already decided.

What this practically means

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Executive summary

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The Claimant applied by notice dated 20th May 2015 for leave to amend her Memorandum of Claim to introduce the issue of her allegedly premature retirement at age 55 instead of 70. She argued that a ruling of the court of 16th December 2014 had directed that she establish the foundational basis of her claim by amendment, and that amendments should be freely allowed absent prejudice. The Respondents, through a replying affidavit sworn by Charity Kirigo Njiru, opposed the application, contending that the original 2011 claim concerned unlawful compulsory leave, that the Claimant had been reinstated so the claim abated, that the injunction seeking to stop her retirement was spent, and that the application was in substance an attempt to appeal the ruling of 16th December 2014 after over four years of inordinate delay. The court held that while amendments are generally allowed for the ends of justice, they must not be prejudicial, delayed, or amount to substitution of the suit. Drawing on Joseph Tireiti and Mukibi versus Bhavsar, the court found that the retirement issue had already been litigated and dismissed in the 16th December 2014 ruling; the court had become functus officio on that issue. Allowing an amendment based on the same facts would amount to the court sitting on its own appeal. The facts of January 2014 were new, separate and distinct from the 2011 claim, and their inclusion would completely change the cause of action. The application was dismissed with costs to the respondents.

Key legal issues

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01

Leave to amend pleadings

Holding

Amendments are generally allowed for the ends of justice but not where they introduce a completely new cause of action, cause undue delay, or prejudice the other party

Reasoning

The court restated the general rule that amendments should be freely allowed for the ends of justice, subject to the amendments not being prejudicial, there being no undue delay, and no judgment or ruling having been delivered. Facts known at filing but omitted by mistake may be added, but new, separate and distinct facts should form separate suits.

p. 2
02

Substitution versus amendment

Holding

The proposed amendment, based on facts arising in January 2014 in a suit filed in 2011, would completely change the cause of action and amount to substitution, which is impermissible

Reasoning

Relying on Mukibi versus Bhavsar, the court held that where new facts of a different character are introduced, the result is a substitution of the suit rather than an amendment, which prejudices the other party. Such matters should be brought as separate suits.

p. 3
03

Functus officio and attempted appeal via amendment

Holding

Having ruled on the retirement issue on 16th December 2014, the court became functus officio and the application was an impermissible attempt to revisit that ruling

Reasoning

The court had already considered and dismissed the Claimant's application of 18th June 2014 concerning retirement at age 55 versus 70. To allow an amendment on the same facts would amount to the court sitting on its own appeal. A dismissal extinguishes the claim as presented and cannot be resurrected by amendment.

p. 3

Legal principles established

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  • Amendments should not be allowed where they substitute the suit for another that changes the entire matter of the suit
  • Once the court makes a finding on an issue it becomes functus officio and cannot revisit it through a later amendment

Court orders

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  1. 1.The application dated 20th May 2015 and filed on 19th July 2015 seeking leave to amend the Memorandum of Claim is dismissed with costs to the respondents

Authorities

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Legislation

  • Employment and Labour Relations Court (Court Procedure) RulesRule 14(6) and 16

Cases cited (3)

  • Central Bank of Kenya Ltd versus Trust Bank Limited & 4 Others
    Civil Appeal 222 of 1998
  • Joseph Tireiti versus Jacob Kipsugot Arap Lagate & Another
    [2013] eKLR
  • Mukibi versus Bhavsar
    [1976] EA
Jurisdiction invoked
Rule 14(6) and 16 of the Court procedure rules (ELRC Procedure Rules)

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, "Esther Mutai v David Mulwa & 3 others [2015] KEELRC 8 (KLR)", Case Analysis (2015). Application dated 20th May 2015 in Claim filed 24th May 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/8/eng@2015-11-24

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