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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 780 (KLR)

Joyce Kabura Waboi v Safaricom Limited [2019] KEELRC 780 (KLR)

Employment and Labour Relations Court
27 September 2019
OMONESMUS N. MAKAU
1,815 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant moved the Court by Notice of Motion dated 12th March 2019 seeking leave to amend her Memorandum of Claim, with the proposed amended claim deemed filed and served upon payment of fees, and costs in the cause. The amendments had the effect of withdrawing the Work Injury claim and retaining only the claim for unfair termination on medical grounds. The Respondent opposed, arguing the application was an afterthought intended to defeat its Notice of Preliminary Objection challenging the Court's jurisdiction, that the amendment was unnecessary as the parties were unchanged, that the dispute properly belonged before the Director of Occupational Safety and Health Services under the Work Injuries Benefits Act, and that the Claimant had wrongly invoked the Civil Procedure Act instead of Rule 14(6) of the ELRC (Procedure) Rules. The Claimant relied on the Central Kenya Ltd principles for amendment of pleadings, contending the amendments were necessary to determine the real question in controversy and caused no prejudice. The court framed two issues: whether the application was merited and who should bear its costs. Holding that a party cannot be forced to pursue a claim against their wish, and that the pending preliminary objection did not bar an amendment narrowing the issues to the real dispute, Makau J allowed the application as prayed. However, because the abandoned claims had occasioned the Respondent the cost of filing the preliminary objection and a reply, costs of the application were awarded to the Respondent. Judgment delivered at Nairobi on 27th September 2019.

Key legal issues

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01

Whether leave to amend the Memorandum of Claim should be granted where the amendment abandons the work injury claim and narrows the dispute to unfair termination

Holding

The application was merited; the amendment served the interest of justice by narrowing the issues to the real question in controversy despite being provoked by the pending preliminary objection.

Reasoning

The court found the amendment merely withdrew or abandoned the Work Injury claim, retaining the unfair termination claim, a step that did not even require a formal application. Although the application was provoked by the Respondent's preliminary objection on jurisdiction, that did not bar amendment to bring out the real question in controversy. The general principles permitting amendments necessary for determining the real question, without prejudice not compensable in costs, supported allowing it.

p. 3
02

Whether costs should follow the Respondent's prejudice from the abandoned claims

Holding

Costs of the application were awarded to the Respondent to compensate for the cost of filing the preliminary objection and reply occasioned by the abandoned claims.

Reasoning

Pleading claims later abandoned caused the Respondent to incur expense in filing the Notice of Preliminary Objection and a Reply to the Application. Consistent with the principle that amendments may be allowed where any prejudice is compensable in costs, the court awarded the costs of the application to the Respondent rather than ordering costs in the cause.

p. 3

Legal principles established

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  • A party may abandon or withdraw a claim by amendment, or even orally, provided the other party's interests are considered.

Court orders

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  1. 1.Leave granted to amend the Memorandum of Claim; the proposed Amended Memorandum of Claim deemed duly filed and served upon payment of requisite court fees
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Employment and Labour Relations ActSection 12; Section 12(5)(b)
  • Work Injuries Benefits Act, 2007Sections 16, 51 and 52
  • Civil Procedure Act and RulesNot specified (invoked generally by the Respondent as wrongly relied upon)
  • Employment and Labour Relations Court (Procedure) RulesRule 14(6)

Cases cited (5)

  • Jared Onyango Odindo –v- Civicon Ltd
    [2017] eKLR
  • AAT Holdings Ltd v Diamond Shield International Ltd
    [2014] eKLR
  • Central Kenya Ltd v Trust Bank Ltd & 5 others
    [2000] eKLR
  • Joseph Kipkirui Mutai –v- Richard Kibet & Another
    [2015] eKLR
  • Attorney General –v- Law Society of Kenya & Another
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joyce Kabura Waboi v Safaricom Limited [2019] KEELRC 780 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/780/eng@2019-09-27

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