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ELRCPartially AllowedLabour Relations Cause No. 2234 of 2017· [2018] KEELRC 877 (KLR)

Mose Nyambega Ondieki v Vice Chancellor, Maasai Mara University & 3 others [2018] KEELRC 877 (KLR)

Employment and Labour Relations Court
26 October 2018
MOMAUREEN ONYANGO
3,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employees can add new claims, like termination, to ongoing cases without filing a fresh suit.

What this practically means

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Executive summary

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The claimant, an employee of Maasai Mara University, filed a notice of motion dated 21st June 2018 seeking leave to further amend his amended memorandum of claim under Rule 14(6) of the ELRC (Procedure) Rules. He sought to include a claim for termination of his employment by letter dated 16th April 2018, the suit having originally been filed in 2017 while he was still on suspension. The respondents and Interested Party opposed through grounds of opposition, arguing that no employment relationship existed with the 1st and 2nd respondents, that the amendment introduced a new and different cause of amounting to a novation and abuse of process, that the amendments pleaded evidence contrary to Order 2 Rule 3(1) of the Civil Procedure Rules, and that the application failed because no draft further amended memorandum of claim was annexed to the supporting affidavit contrary to Rule 9 of the Oaths and Statutory Declarations Rules. The application was disposed of by written submissions. Relying principally on Rule 14(4), which permits pleadings in the ELRC to contain evidence, the court rejected the pleading-evidence objection. It held that the draft amended claim was annexed to the notice of motion, not the affidavit, so no offence against the Oaths and Statutory Declarations Rules arose. Applying the liberal principle favouring amendment and the anti-multiplicity principle, the court found the amendments merited and granted leave to amend, with 14 days for filing and service and corresponding 14 days for the respondents and Interested Party to reply.

Key legal issues

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01

Whether an amendment introducing the termination of employment that occurred after filing of the suit may be allowed

Holding

Yes - the amendment was merited because the claimant's circumstances changed by intervening events (termination after filing while the suit concerned the earlier suspension), and refusing it would force a fresh suit and multiplicity of litigation

Reasoning

The court applied Rule 14(6) of the ELRC (Procedure) Rules and the well-established principle that amendments should be freely allowed where made in good faith and without uncompensated prejudice. It held that requiring the claimant to prosecute a claim on facts overtaken by the respondents' own action, or to file a fresh suit, would contravene the principle against multiplicity of suits and clog the court system.

p. 5
02

Whether the intended amendments offend Order 2 Rule 3(1) of the Civil Procedure Rules by pleading evidence

Holding

No - under Rule 14(4) of the ELRC (Procedure) Rules, pleadings in this Court may contain evidence

Reasoning

The court reproduced Rules 4, 14(3), 14(4) and 14(6) of the ELRC (Procedure) Rules and held that since the governing rules expressly permit pleadings to contain evidence, the respondents' objection founded on Order 2 Rule 3(1) of the Civil Procedure Rules, which applies to ordinary civil suits, was unfounded.

p. 4
03

Whether the application fails for want of a draft further amended memorandum of claim annexed to the supporting affidavit

Holding

No - the prayers show the draft was annexed to the notice of motion, not the affidavit, and no law prohibits attaching documents to an application without reference in the affidavit

Reasoning

The court perused the application and found that prayers 2 and 3 expressly stated the draft was annexed to the notice of motion. Since it was not attached to the affidavit, the sealing and stamping requirements of Rule 9 of the Oaths and Statutory Declarations Rules relied on by the respondents were not triggered.

p. 4

Legal principles established

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  • Under Rule 14(4) of the ELRC (Procedure) Rules, pleadings in this Court may contain evidence, so an objection that an amendment pleads evidence is unfounded.
  • The power to allow amendment of pleadings is wide and discretionary, to be exercised to do justice, and amendments should be granted freely where circumstances have changed by intervening events and no uncompensated prejudice is caused.
  • A party may attach documents to a notice of motion without making reference to them in the supporting affidavit without offending Rule 9 of the Oaths and Statutory Declarations Rules.

Court orders

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  1. 1.Leave granted to the claimant to further amend the memorandum of claim as prayed
  2. 2.The further amended memorandum of claim to be filed and served within 14 days from the date of the ruling
  3. 3.Corresponding leave granted to the respondents and Interested Party to file a reply to the amended claim within 14 days of service

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 3
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 4(1), 14(3), 14(4), 14(5), 14(6), 17(1) and (3)
  • Oaths and Statutory Declarations Act/RulesRule 9
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 18
  • Civil Procedure Act/RulesOrder 1 Rules 3 and 9; Order 2 Rule 3(1); Order 8 Rules 3 and 5(1)
  • Universities Act No. 42 of 2012Sections 19 and 35
  • Legal Notice No. 226 of 30th December 2013, Kenya Gazette Supplement No. 186 (Legislative Supplement No. 78) - Maasai Mara University Charter-
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (12)

  • JOSEPH KIPKIRUI MUTAI VS RICHARD KIBET & ANOTHER
    Civil Appeal No. 17 of 2014
  • FREIGHT FORWARDERS KENYA LIMITED VS AYA INVESTMENTS UGANDA LIMITED
    (2014) eKLR
  • East Bakery vs Castelino
    (1958) E.E. 461
  • MOMBASA CEMENT LIMITED VS SPEAKER OF THE NATIONAL ASSEMBLY & 2 OTHERS
    (2016) eKLR
  • Ann Muthoni Karanu vs La Nyavu Gardens Ltd
    NBI ELC 181 of 2014 (2015) eKLR
  • Cobbold vs Greenwich LBC
    9th August 1999 (unreported)
  • CENTRAL BANK OF KENYA LIMITED VS TRUST BANK LIMITED
    (2002) 2 EA 365
  • ZEPHIR HOLDINGS LTD VS MIMOSA PLANTATIONS LTD, JEREMIAH MAZTAGARO AND EZEKIEL MISANGO MUTISYA
    (2014) eKLR
  • WILLIAM KIPRONO TOWETT & 1597 OTHERS VS FARLAND AVIATION LTD & 2 OTHERS
    (2016) eKLR
  • JEREMIAH NYANGWARA MATOKA -V- INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND 2 OTHERS
  • TRISHCON CONSTRUCTION COMPANY v LANDMARK HOLDINGS LTD
    [2016] eKLR
  • Institute For Social Accountability & Another v Parliament of Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Section 3 of the Employment and Labour Relations Court Act, 2011 and Rules 4(1), 14(6), 17(1) and (3) of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Mose Nyambega Ondieki v Vice Chancellor, Maasai Mara University & 3 others [2018] KEELRC 877 (KLR)", Case Analysis (2018). Labour Relations Cause No. 2234 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/877/eng@2018-10-26

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