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ELRCDismissedNot stated in the judgment· [2015] KEELRC 669 (KLR)

Andanas Indiazi v Halai Concrete Quarries [2015] KEELRC 669 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
9 July 2015
NMNzioki wa Makau
1,407 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 a worker's late attempt to add figures to his claim, ruling the claim was already complete and amendments weren't needed.

What this practically means

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Executive summary

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The Claimant moved the Industrial Court by Notice of Motion dated 19th February 2015 seeking leave to amend his Memorandum of Claim, filed in May 2012, so as to introduce figures quantifying his claim, with the annexed draft deemed properly filed upon payment of charges, plus costs. The Respondent opposed, deponing through Vinod Patel that the amendment was malicious, made inordinately late, and would prejudice rights existing at the date of the amendment, contrary to the oxygen principle and the overriding objective. The parties disposed of the application by written submissions. The Claimant argued that amendments should be freely allowed at any stage before final verdict and did not alter the character of the case; the Respondent contended the amendment came too late, would substantially alter the subject matter, and noted that thrown away costs of Kshs. 15,000/- ordered when the suit was reinstated in 2014 remained unpaid. The Court held that the Industrial Court (Procedure) Rules 2010 have no express provision on amendment, and under Rule 36 recourse may be had to Order 8 of the Civil Procedure Rules 2010. Relying on Jenipher Gumba Oyoo v Kenindia Assurance and Eastern Bakery v Castelino, the Court found the amendments unnecessary since the claims were already articulated and required only proof at trial. Applying the maxim that he who seeks equity must do equity, the Court ordered payment of the outstanding Kshs. 15,000/- within 14 days and dismissed the application with no order as to costs.

Key legal issues

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01

Applicable regime for amendment of pleadings in the Industrial Court

Holding

The Industrial Court (Procedure) Rules 2010 contain no express provision on amendments; by virtue of Rule 36 the Court may have recourse to Order 8 of the Civil Procedure Rules 2010 and the Civil Procedure Act

Reasoning

Rule 36 of the Industrial Court (Procedure) Rules 2010 allows the Court to regulate its own procedure. Prior decisions of the Court sanction recourse to the Civil Procedure Rules where a lacuna exists. Order 8 Rules 3(1) and 5(1) confer a discretion on the court to allow amendment of pleadings at any stage on just terms, for the purpose of determining the real question in controversy.

p. 2
02

Principles governing grant of leave to amend pleadings

Holding

Amendments should be freely allowed if made without injustice to the other side, but leave will be refused where the amendment changes the action into one of a substantially different character or prejudices rights existing at the date of the amendment

Reasoning

The Court relied on Jenipher Gumba Oyoo v Kenindia Assurance and the classic Eastern Bakery v Castelino statement of principle. Applying these, the Court found the amendments unnecessary since the claims were already articulated and only lacked figures, which the Claimant could prove at trial. The Claimant had not demonstrated that the amendment was necessary for determining the real question in issue.

p. 3

Legal principles established

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  • Where the Industrial Court (Procedure) Rules are silent, the Court may have recourse to the Civil Procedure Rules to fill the lacuna
  • Amendments should not be a departure from the cause of action; a party who seeks equity must do equity

Court orders

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  1. 1.The Claimant's Notice of Motion dated 19th February 2015 seeking leave to amend the Memorandum of Claim is dismissed
  2. 2.No order as to costs on the application
  3. 3.The Claimant to pay the thrown away costs of Kshs. 15,000/- ordered upon reinstatement of the suit, within 14 days

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules 2010Order 8 Rule 1; Order 8 Rule 3(1); Order 8 Rule 5(1)
  • Constitution of Kenya 2010Article 159; Article 162(2)
  • Industrial Court ActSection 12
  • Industrial Court (Procedure) Rules 2010Rule 36

Cases cited (4)

  • AAT Holdings Limited v Diamond Shields International Ltd
    [2014] eKLR
  • Central Bank of Kenya v Trust Bank & 5 others
    [2000] eKLR
  • Jenipher Gumba Oyoo v. Kenindia Assurance Company Limited
    [2011] eKLR
  • Eastern Bakery v. Castelino
    (1958) EA 461
Jurisdiction invoked
Section 12 of the Industrial Court Act read with Article 162(2) 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Andanas Indiazi v Halai Concrete Quarries [2015] KEELRC 669 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/669/eng@2015-07-09

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