Kayum Khan v International Commercial Company (K) Limited [2018] KEELRC 1809 (KLR)
The bottom line
#A Kenyan employment court struck out an amended claim that exceeded the scope of approved amendments, but kept the employer's defence on file.
What this practically means
#Executive summary
#Key legal issues
#Validity of the Verifying Affidavit and Defence of 7.2.2013
Claimant's application to strike them out dismissed
The claimant alleged the verifying affidavit was signed by a stranger and without authority. The court held the burden of proving the signature was not the deponent's lay on the claimant and was not discharged on a balance of probability, there being no expert evidence. Board minutes of 31.1.2013 authorised Mr. Farid Hamir to sign affidavits; failure to file the authority was not fatal. Defence filed out of time was condoned by the claimant's conduct, and objection was an afterthought.
Validity of the Amended Claim filed 8.6.2017
Struck out as exceeding the leave granted by the Court of Appeal
The Court of Appeal granted leave to amend strictly in terms of prayer 3 of the application dated 8.7.2013, i.e. as per the annexed draft. The claimant admitted making numerous additions, deletions and new paragraphs not covered by the leave, including new claims after evidence had closed. Leave to amend is not leave to re-start trial; the claimant was directed to file an amended claim strictly in terms of the leave order.
Legal principles established
#- Leave to amend pleadings in terms of an annexed draft does not authorise the party to alter that draft
- Failure to file the authority or resolution authorising a verifying affidavit by a corporation does not invalidate the accompanying pleading
- A defence filed out of time is effective if no precipitate action (interlocutory judgment or undefended-suit direction) has been taken and the default was condoned
Court orders
#- 1.The Claimant's application dated 5.6.2017 is dismissed
- 2.The respondent's application dated 27.6.2017 is allowed subject to directions
- 3.The Amended Claim filed on 8.6.2017 is struck out
- 4.The claimant to file and serve another amended claim in terms of the leave order granted by the Court of Appeal on 2.6.2017 within 14 days
- 5.The respondent to have 14 days after service with the Amended Claim to file and serve amended defence if necessary
- 6.The suit to be heard by Court 6 where it was partly heard; parties to mention before the said Court on 26.6.2018
- On appeal from
- Court of Appeal
- Civil Appeal No. 3 of 2014
- Jurisdiction invoked
- Employment and Labour Relations Court Procedure Rules 2016 and Industrial Court Procedure Rules 2010; original employment jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kayum Khan v International Commercial Company (K) Limited [2018] KEELRC 1809 (KLR)", Case Analysis (2018). Cause No. 1525 of 2012 (as inferred from the referenced applications; judgment does not print the cause number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1809/eng@2018-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.