Selina Musungu Okwisya v Dominic Njuguna Mbigi t/a Mbigi Njuguna & Company Advocates [2018] KEELRC 721 (KLR)

Employment and Labour Relations Court

25 October 2018

HWHellen Wasilwa

395 words in judgment

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The bottom line

Kenya's Employment Court allowed a claim amendment filed without permission, holding that courts should prioritise fair hearings over procedural technicality.

What this practically means

Executive summary

The Respondent/Applicant filed a chamber summons under Section 3A of the Civil Procedure Act and Order VI rules of the Civil Procedure Rules seeking to strike out the Claimant's Amended Statement of Claim dated 13th March 2018 on the ground that it was filed and served on 19th March 2018, after close of pleadings, without leave of Court. The Claimant opposed, arguing that the limitation on amending pleadings is a technicality with no place in modern jurisprudence and that the court should consider the substance of the claim. The court, Wasilwa J, noted that the claim was filed on 6th October 2017, a defence on 27th November 2017, and the amended claim on 13th March 2018 without leave, contrary to Order 8 of the Civil Procedure Rules. Although the court observed that the application was filed under provisions of law not known, it proceeded to determine the matter on its merits. Relying on Eastern Bakery v Castelino (1958) E.A 461, which holds that amendments sought before hearing should be freely allowed if made without injustice and that injustice can be cured by costs, the court held that the irregular amendment caused no real prejudice since the Respondents would have a chance to respond to the new facts introduced. The application was accordingly declined, the amendment allowed, the Respondents given leave to respond, with costs in the cause.

Key legal issues

Whether an amendment to pleadings filed after close of pleadings without leave of Court should be struck out

Holding

The amendment was irregularly effected without leave as required under Order 8 of the Civil Procedure Rules, but it was allowed because it caused no prejudice to the Respondent, who was given an opportunity to respond to the new facts

Reasoning

The court acknowledged that the Claimant amended her claim without seeking leave as expected under Order 8 of the Civil Procedure Rules, a procedural irregularity. However, applying the principle in Eastern Bakery v Castelino that amendments should be freely allowed where no injustice results, and noting the Respondent would have a chance to respond to the new facts introduced, the court exercised its discretion to allow the amendment rather than strike it out, holding technicality subordinate to substantive justice.

p. 1

Legal principles established

Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs

Court orders

1.The application to strike out the Amended Statement of Claim is declined; the amendment though effected without leave is allowed
2.The Respondents are given a chance to respond to the amended claim
3.Costs in the cause

Authorities

Legislation

Civil Procedure ActSection 3A
Civil Procedure RulesOrder VI rule II
Civil Procedure RulesOrder VI Rule 13
Civil Procedure RulesOrder VIA rule 3
Civil Procedure RulesOrder 8

Cases cited (1)

Eastern Bakery vs Castelino
(1958) E.A 461

Jurisdiction invoked: Section 3A of the Civil Procedure Act, Order VI rule II, Order VI Rule 13 and Order VIA rule 3 of the Civil Procedure Rules and all other enabling provisions of the law

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Selina Musungu Okwisya v Dominic Njuguna Mbigi t/a Mbigi Njuguna & Company Advocates [2018] KEELRC 721 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/721/eng@2018-10-25

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