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ELRCDismissedCause No 79 of 2013· [2016] KEELRC 326 (KLR)

Miriam Said Mwabora & 70 others v Hotel Span Limited & 3 others [2016] KEELRC 326 (KLR)

Industrial Court (Employment and Labour Relations Court)
25 November 2016
JRJames Rika
3,117 words in judgment
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The bottom line

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Kenya's Employment Court refused a late attempt to rewrite an employment claim after the hearing had already closed, because delay would unfairly prejudice the other side.

What this practically means

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Executive summary

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This is a ruling by the Industrial Court at Mombasa (James Rika, Judge) on a Notice of Motion dated 7th April 2016 by the Claimants seeking leave to amend their Statement of Claim after the close of the full hearing and while parties awaited filing and highlighting of closing submissions. The Claim, initiated at the High Court in Mombasa in 2007 and transferred to the Industrial Court in 2013, concerned errors in pleaded dates of employment (1997) and termination (2003), which the Claimants said went to the years of service. The Respondents opposed, arguing the application was an abuse of process, came too late, would require reopening the hearing, and could not overcome a pending limitation-of-time objection under the Limitation of Actions Act. The Court first held that the correct procedural regime was Rule 14(6) of the Industrial Court Procedure Rules 2010, not the Civil Procedure Rules, and that Section 3A inherent jurisdiction of the High Court does not extend to the ELRC, whose inherent power lies in Sections 3 and 12(3)(viii) of the ELRC Act. However, the Court declined to dismiss the application on that technical footing, invoking the overriding objective and treating the invocation of enabling provisions as implied invocation of its own rules. Borrowing principles from the Civil Procedure regime and English authority, including the shift from the traditional Cobbald position to the 'all circumstances' approach in Brown v. Innovatorone, the Court held the application was very late, would prejudice the Respondents, and would interfere with the efficient allocation of judicial resources. The application was declined; timetables for closing submissions were issued and costs were made costs in the cause.

Key legal issues

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01

Correct procedural regime for amendment before the ELRC

Holding

Rule 14(6) of the Industrial Court Procedure Rules 2010 governs amendment of pleadings; the Civil Procedure regime applies only in filling gaps, and Section 3A inherent jurisdiction does not extend to the ELRC

Reasoning

The Court held that the Civil Procedure Rules apply to ELRC proceedings only as stated in the Industrial Court Procedure Rules or to fill gaps where those Rules are silent. Section 2 of the Civil Procedure Act defines 'Court' as the High Court or a subordinate court, which does not include the ELRC. The ELRC's inherent jurisdiction is found in Sections 3 and 12(3)(viii) of its own Act.

p. 3
02

Whether amendment can be sought after closure of the hearing

Holding

Rule 14(6) does not preclude post-hearing amendment, but the application is decided on the 'all circumstances' approach; here it was refused

Reasoning

The Rule allows amendment with leave and does not expressly preclude amendment where hearing has concluded. The Court borrowed settled principles from the Civil Procedure regime and English comparative authority, adopting the modern approach that weighs all circumstances under the overriding objective rather than allowing amendments as of right if compensable in costs. The extreme lateness, closed evidence, prior opportunities to amend, and pending limitation ruling weighed against allowing it.

p. 4
03

Effect of the High Court ruling on limitation

Holding

The High Court ruling of Judge Odero dismissing the 3rd Respondent's limitation-based striking-out application stands; parties must address in closing submissions whether the Court should depart from it

Reasoning

The record showed the 3rd Respondent's application to strike out the claim on limitation grounds was dismissed by Judge Maureen Odero in 2009. Judge Radido later reserved the limitation issue for the main judgment but was transferred. The Court directed parties to address in closing submissions whether the High Court ruling on limitation had been removed from the record and whether the Court should depart from it.

p. 6

Legal principles established

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  • The Civil Procedure Act and Rules apply to the Employment and Labour Relations Court only so far as the Industrial Court Procedure Rules so state or where those Rules are silent; the inherent jurisdiction of the ELRC is found in Sections 3 and 12(3)(viii) of the ELRC Act, not Section 3A of the Civil Procedure Act
  • An application cannot fail solely because the wrong procedural rules were invoked, where the court is able to consider it substantively under the overriding objective
  • Late amendments after closure of hearing may be refused where they prejudice the opposite party and interfere with the efficient administration of justice, notwithstanding an offer of costs

Court orders

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  1. 1.The Application by the Claimants dated 7th April 2016, seeking to amend the Claim further, is declined
  2. 2.Claimants to file and serve their Closing Submissions within 14 days of the Ruling
  3. 3.Respondents to file and serve their Closing Submissions within 14 days of service
  4. 4.Parties to agree on a fresh date for highlighting of their Submissions
  5. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 2
  • Civil Procedure RulesOrder 8 Rules 3(3), 5 and 8
  • Industrial Court Procedure Rules 2010Rule 14(6)
  • Employment and Labour Relations Court ActSections 3, 12(3)(viii)
  • Limitation of Actions ActSection 4(1)(a)
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Harrison C. Kariuki v. Blue Shield Insurance Co. Ltd.
    [2006] e-KLR
  • Raphael Mkare & 515 Others v. Agricultural Development Corporation
    [2015] e-KLR
  • Cobbald v. Greenwich LBC
    [1999] EWCA civ. 2074
  • Savings and Investment Bank Limited [in liquidation] v. Fincken
    [2003] EWCA civ. 1630
  • Brown and Others v. Innovatorone PLC & Others
    [2011] EWHC 3221 [Comm.]
  • Bourke and Another v. Favre and Another
    [2015] EWHC 277 [Ch]
  • Wani LLP v. Royal Bank of Scotland Plc and another
    [2015] EWHC 1181 [Ch]
Jurisdiction invoked
Employment and Labour Relations Court Act, Sections 3 and 12(3)(viii) (inherent jurisdiction); Industrial Court Procedure Rules 2010, Rule 14(6)

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, "Miriam Said Mwabora & 70 others v Hotel Span Limited & 3 others [2016] KEELRC 326 (KLR)", Case Analysis (2016). Cause No 79 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/326/eng@2016-11-25

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