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ELRCPartially AllowedNot stated in the judgment (application dated 30/7/2014 in the Statement of Claim dated 10th April 2013)· [2015] KEELRC 1126 (KLR)

George Mureithi & others v Kenatco Taxis Limited (In Receivership) (Cause 507 of 2013) (Employment and Labour) [2015] KEELRC 1126 (KLR)

Industrial Court of Kenya
12 May 2015
HWHellen Wasilwa
1,402 words in judgment
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The bottom line

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Kenya's Industrial Court allowed employees to add their employer's Receiver and Manager to their lawsuit, holding that amendments are permitted when they bring the real dispute before the court without real prejudice.

What this practically means

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Executive summary

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This was a ruling by the Industrial Court on a Notice of Motion dated 30th July 2014 in which the Claimants, led by George Mureithi, sought leave to amend their Statement of Claim dated 10th April 2013. The proposed amendment sought to add the Receiver and Manager of Kenatco Taxis Limited (in Receivership), appointed by the debenture holder ICDC, as a party, on the ground that he was the legal employer who had converted the Claimants' employment, hired them afresh, was involved in the wrongful termination and in the conciliation process, and had capacity to be sued on behalf of the company in receivership. The Respondent opposed, contending that the application was incompetent, an abuse of process, and that the cause of action against the proposed added party was time barred. Applying Order 1 rules 9 and 10 of the Civil Procedure Rules, and the principles in Kenya Cold Storage (1964) Ltd v Overseas Food Service (Africa) Ltd and Otieno v Omoro, Hellen Wasilwa J held that joinder and amendment are discretionary, that leave to amend is granted where it enables the real question in dispute to be raised without uncompensated prejudice, and that limitation continues to run against an added party until the amendment is ordered, with any limitation defence remaining open to the new party. The Respondents had not demonstrated prejudice. The court allowed the application and directed that the intended amendment be effected within 14 days from the date of the ruling, delivered in open court on 12th May 2015.

Key legal issues

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Whether leave should be granted to amend the Statement of Claim to add the Receiver and Manager appointed by ICDC as a party

Holding

The application was allowed; the amendment enables the real question in issue to be raised and the Respondents did not demonstrate prejudice

Reasoning

The court applied the principles in Kenya Cold Storage and Otieno vs Omoro. Addition or deletion of parties is discretionary. The Claimants wished to bring in the Receiver and Manager as the real employer. The Respondents argued limitation but did not demonstrate how the amendment would prejudice them, and any defence of limitation remains open to the added party as if proceedings were freshly instituted on the date of the amendment.

p. 3

Legal principles established

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  • An amendment adding a new party takes effect as a fresh suit against that party, and limitation continues to run against the added party until the amendment is ordered
  • Leave to amend will be granted where it enables the real question in issue to be raised and does not occasion compensable injury to the opposite party

Court orders

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  1. 1.Leave granted to amend the Statement of Claim dated 10th April 2013
  2. 2.The intended amendment to be effected within 14 days from the date of the Ruling

Authorities

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Legislation

  • Labour Relations ActSections 69, 73
  • Industrial Court ActSection 12
  • Civil Procedure Act (Cap 21)Order 1 Rules 9 and 10
  • Constitution of KenyaArticle 159(2)(d)
  • Legal Notice No. 78 (Labour Relations Act 2007)

Cases cited (2)

  • Kenya Cold Storage (1964) Limited vs Overseas Food Service (Africa) Limited
    Civil Case No. 414 of 1995
  • Otieno vs Omoro
    Civil Suit No. 52 of 1976
Jurisdiction invoked
Section 12 of the Industrial Court Act 2011; Sections 69 and 73 of the Labour Relations Act; Article 159(2)(d) of the Constitution of Kenya

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, "George Mureithi & others v Kenatco Taxis Limited (In Receivership) (Cause 507 of 2013)  (Employment and Labour) [2015] KEELRC 1126 (KLR)", Case Analysis (2015). Not stated in the judgment (application dated 30/7/2014 in the Statement of Claim dated 10th April 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1126/eng@2015-05-12

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