Wilson Mbithi Kitheka v Barclays Bank of Kenya [2016] KEELRC 771 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Retrospective application of the Constitution of Kenya 2010 and Employment Act 2007
The 2010 Constitution and 2007 Employment Act do not apply to proceedings founded on a cause of action that arose in 2004; the applicable law is the repealed 1969 Constitution, Employment Act cap 226 and Trade Disputes Act cap 234
The cause of action arose on 11th February 2004 when the claimant was dismissed. The claims sought to be introduced rest on the 2010 Constitution and the 2007 Employment Act and their rules. Since the suit crystallised in 2004, those instruments would operate retroactively, which the court held impermissible; the repealed 1969 Constitution and pre-2007 labour statutes govern instead.
Discretion to grant leave to amend pleadings
The power to allow amendments is discretionary and must be exercised judiciously; it will be refused where the amendment would cause injustice, irreparable loss or abuse of process
Relying on Kassam v Bank of Baroda (Kenya) (Kuloba J) and Bullen Leake & Jacobs on pleadings, the court held that although amendments should be granted liberally, the power is discretionary and must be exercised judiciously. Introducing entirely new special damages claims more than 12 years after the cause of action arose, never pleaded in the initial plaint, would work injustice on the respondent.
Introduction of new special damages claim after limitation period
A claim for special damages for loss of income and benefits introduced more than 12 years after the cause of action arose, and never pleaded in the initial plaint filed on 21st May 2004, cannot be introduced by amendment
The intended amendment quantified loss of income and benefits at Kshs 47,014,987 from February 2004 to December 2007. The court found this claim completely new, absent from the initial plaint filed at the High Court in May 2004, and sought to be introduced over 12 years after the cause of action arose, without justification, and therefore unjust to the respondent.
Legal principles established
#- Leave to amend pleadings must be refused where the amendment would cause injustice or irreparable loss to the other side or constitute a device to abuse the court process
- The Constitution of Kenya 2010 and the Employment Act 2007 do not apply retroactively to a cause of action that arose before their commencement
Court orders
#- 1.The application dated 14th December 2015 seeking leave to amend the statement of claim is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Original employment and labour relations jurisdiction; the suit crystallised in 2004 under the repealed Constitution of Kenya (1969), Employment Act cap 226 and Trade Disputes Act cap 234
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Mbithi Kitheka v Barclays Bank of Kenya [2016] KEELRC 771 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/771/eng@2016-09-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.