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ELRCDismissedNot stated in judgment (Notice of Motion dated 13th February 2017)· [2018] KEELRC 970 (KLR)

Kenya Wine Agencies v Yobesh Amoro [2018] KEELRC 970 (KLR)

Employment and Labour Relations Court
12 October 2018
MOMaureen Onyango
3,454 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to let a defendant add new claims 12 years late, ruling that counterclaims follow limitation deadlines just like ordinary suits.

What this practically means

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Executive summary

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The Respondent (Applicant in the motion) sought leave to amend his Defence and introduce a Counterclaim in a suit filed by the Claimant in 2006 for recovery of money paid as loan guarantor. The application, made in February 2017, was opposed by the Claimant on grounds of inordinate and unexplained delay, a history of dilatory tactics (including prior leave to amend granted in 2013 and 2014 that was never complied with), and that the proposed amendments introduced fresh causes of action — unfair termination and malicious prosecution — that were time barred under Section 90 of the Employment Act and would change the character of the suit. The Applicant argued the amendment was contemplated in his witness statement, that the Employment Act could not apply retrospectively to a 2005 dismissal, and that his cause of action for malicious prosecution accrued on his acquittal in February 2018 in Anti-Corruption Case No. 6 of 2011. The court, applying the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank and Coffee Board of Kenya v Thika Coffee Mills, held there was inordinate unexplained delay of some 12 years, that the applicant had previously been granted leave but failed to amend, and that the counterclaim introduced a time-barred fresh cause of action, the limitation period having lapsed on 2nd June 2011. The court also noted the malicious prosecution claim would require joinder of the Attorney General. Equity aids the vigilant, not the indolent. The Notice of Motion dated 13th February 2017 was dismissed with costs to the Claimant.

Key legal issues

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01

Whether leave to amend should be granted notwithstanding inordinate delay and limitation

Holding

The application was dismissed: the delay of some 12 years was inordinate and unexplained, the applicant had earlier been granted leave to amend but failed to comply, and the proposed counterclaim introduced a fresh cause of action already time barred.

Reasoning

The court applied the settled principles that amendments may be sought at any stage but should be timeously applied for, should not introduce a claim barred by limitation, and should not defeat an accrued limitation defence. The limitation period for the 2005 dismissal claim lapsed on 2nd June 2011. Prejudice to the Claimant could not be compensated by costs, and a malicious prosecution counterclaim would require joinder of the Attorney General.

p. 4
02

Whether the proposed amendments change the character of the suit

Holding

The amendments would introduce new causes of action (unfair termination and malicious prosecution) unrelated to the Plaint, altering the nature of the suit to the Claimant's detriment.

Reasoning

The original suit concerned recovery of money paid by the Claimant as loan guarantor. The draft amended defence sought to introduce unfair termination, malicious prosecution, mandatory injunction and damages claims, including release of a motor vehicle and title deed, matters disconnected from the issues in the Plaint and therefore not assisting determination of the real controversy.

p. 3

Legal principles established

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  • A counterclaim is a suit that can be filed independently and is therefore subject to the law of limitation
  • Equity aids the vigilant; a party who sits on his rights for years does not deserve the court's discretionary indulgence where prejudice to the other party would result

Court orders

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  1. 1.The application dated 13th February 2017 is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 3, 20
  • Civil Procedure Rules, 2010Order 8 Rules 3 and 5; Order 11; Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 100
  • Employment Act, 2007Section 90
  • Anti-Corruption and Economic Crimes ActSection 46

Cases cited (7)

  • Kyalo v Bayusung Brothers Ltd
    [1983]
  • Kassam v Bank of Baroda (Kenya) Limited
    (2002) 1 KLR
  • Kenneth Kariuki Githii v Royal Media Services Ltd
    [2009] eKLR
  • George Gikubu Mbuthia v Consolidated Bank of Kenya Ltd & Another
    [2016] eKLR
  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    (2013) eKLR
  • Coffee Board of Kenya v Thika Coffee Mills Limited & 2 Others
    (2014) eKLR
  • Republic vs Charles Kizito Wanjala Maisnde & Yobesh Amoro (Anti-Corruption Case No. 6 of 2011)
Jurisdiction invoked
Sections 3 and 20 of the Employment and Labour Relations Court Act (Chapter 234B), Sections 1A, 1B and 100 of the Civil Procedure Act and Order 8 Rules 3 and 5, Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Kenya Wine Agencies v Yobesh Amoro [2018] KEELRC 970 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 13th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/970/eng@2018-10-12

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