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ELRCAllowedNot stated in the judgment· [2015] KEELRC 422 (KLR)

James Mangale Chai v Gigi & Company [2015] KEELRC 422 (KLR)

Employment and Labour Relations Court
9 October 2015
OMOnesmus Makau
691 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court allowed a claimant to correct the name of the party he sued, but personally fined his lawyer for the late, careless application.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 15.6.2015 brought by the claimant under Rule 14(6) of the Industrial Court (Procedure) Rules, seeking leave to amend his memorandum of claim to substitute the respondent firm, Gigi & Company, with Mr Zainul Yusufali Dar, its managing partner. The motion was made after the close of the claimant's case but at the start of the defence case. Mr Dar, in a replying affidavit, admitted being a partner but opposed the application as baseless and an abuse of process. The court applied the general rule from Kenya Cold Storage (1964) Ltd v Over Seas Food Services (Africa) Ltd that leave to amend is granted where it enables the real questions in issue to be raised without uncompensated prejudice. While criticising the claimant's counsel for lack of due diligence - the defence witness statements filed on 2.12.2014 disclosed the true position yet no amendment was sought before hearing - the court held that denying leave would risk passing a decree against no legal person. The amendment would bring on board a necessary party without whom a decree could not be executed, and no prejudice was proved; the trial had not closed, so the respondent could still respond and call witnesses. The court granted leave to file and serve the amended claim within 14 days, allowed the respondent 14 days to file an amended defence, and ordered the claimant's counsel, Mr. Stephen Odiaga, to personally pay Ksh 3,000 to the respondent as costs of the motion.

Key legal issues

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01

Whether leave to amend the memorandum of claim should be granted to substitute the managing partner of the respondent firm

Holding

Leave granted; the amendment brings on board a necessary party without whom any decree would be unenforceable, and no prejudice was proved

Reasoning

The court accepted it was common ground that Zainul Yusufali Dar is the managing partner of the respondent firm. Denying leave would risk a decree against no legal person. The amendment would enjoin a necessary party without whom a decree could not be executed. Although the claimant's counsel lacked due diligence, the respondent did not demonstrate prejudice, and the trial had not closed so he could still respond and call witnesses. Costs were awarded personally against claimant's counsel for the delay.

p. 2

Legal principles established

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  • Leave to amend pleadings will ordinarily be granted where it enables the real questions in issue to be raised and no prejudice incapable of compensation by costs is occasioned to the opposite party

Court orders

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  1. 1.Leave to amend the claim granted to the claimant to file and serve the amended claim within 14 days
  2. 2.Respondent granted 14 days to file and serve an amended defence
  3. 3.Claimant's counsel Mr. Stephen Odiaga to personally pay Ksh 3,000 to the respondent as costs of the Notice of Motion dated 15.6.2015

Authorities

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Legislation

  • Industrial Court (Procedure) RulesRule 14(6)

Cases cited (1)

  • Kenya Cold Storage (1964) Ltd vs Over Seas Food Services (Africa) Ltd
    Civil Case No 414 of 1975
Jurisdiction invoked
Rule 14(6) of the Industrial Court (Procedure) Rules (ICPRS)

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 Mangale Chai v Gigi & Company [2015] KEELRC 422 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/422/eng@2015-10-09

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