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ELRCDismissedNot stated in the judgment as provided· [2019] KEELRC 1006 (KLR)

JWK v Multimedia University College of Kenya & another (Cause 2041 of 2012) [2019] KEELRC 1006 (KLR)

Employment and Labour Relations Court
8 July 2019
HWHellen Wasilwa
1,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to let a defendant change his defence mid-trial after the employee had already finished testifying.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court by Hellen Wasilwa, J, delivered on July 8, 2019. The 2nd Respondent, WOO, applied by Notice of Motion dated April 16, 2019 under Rules 14(6) & (7) and 17(1) of the ELRC (Procedure) Rules and Sections 1A, 1B and 3A of the Civil Procedure Act for leave to amend his Memorandum of Reply and to file and serve a Witness Statement and List and Bundle of Documents. The matter was partly heard: the Claimant, JWK, and her witnesses had testified and closed her case without witness statements, and the 2nd Respondent had commenced his testimony on April 3, 2019. The Claimant opposed the application through Grounds of Opposition, arguing that the amendment was barred by the BD Joshi and Bhari decisions, sought to introduce a new conspiracy theory based on ethnicity, would reopen the entire case, and infringed her right to a fair trial under Article 50. She relied on George Gikubu Mbuthia, AAT Holdings, and Joseph Ochieng' on the principles governing late amendments. The court held that because the Claimant had testified and closed her case, allowing the amendment would change the entire landscape of the case and deprive her of the opportunity to answer the new issues, causing prejudice; it also offended the rules of procedure since the Claimant had testified on the defence on record. The application was found to be without merit and dismissed with costs to the Claimant.

Key legal issues

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01

Whether leave to amend pleadings should be granted mid-trial after the claimant has closed her case

Holding

The application for amendment was dismissed as without merit because the Claimant had testified and closed her case and the defence witness had commenced evidence; the amendment would introduce new issues the Claimant could not answer.

Reasoning

The court noted the procedural posture: claimant's case closed, defence testimony commenced. Allowing the amendment would alter the case's entire landscape, depriving the Claimant of the chance to respond to the new matters, including the alleged conspiracy theory. This would occasion prejudice consistent with the principles in BD Joshi v JC Patel and offend the rules of procedure, as the Claimant had testified based on the defence on record.

p. 4
02

Whether the amendment offends the rules of procedure

Holding

The court held that the proposed amendment offends the rules of procedure because the Claimants testified on the basis of the defence as it stood on record.

Reasoning

Since pleadings define the issues and give fair notice to the other side, amending the defence after the Claimant had testified on the existing defence would deprive her of fair notice of the case she had to meet. This reinforced the finding of prejudice and supported the dismissal of the application with costs.

p. 4

Legal principles established

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  • Amendment of pleadings after a party has testified and closed their case, and after the opposing party has testified on the pleadings on record, is prejudicial and offends the rules of procedure

Court orders

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  1. 1.The Notice of Motion dated April 16, 2019 is dismissed
  2. 2.Costs to the Claimant

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 14(6) & (7); Rule 17(1); Rule 5
  • Civil Procedure ActSections 1A, 1B, 3A; Section 22
  • Constitution of KenyaArticle 50; Article 159(2)(b)

Cases cited (8)

  • BD Joshi v JC Patel
    [1952] 19 EACA 48
  • Bhari v Khan
    [1965] EA 95
  • George Gikubu Mbuthia v Consolidated Bank of Kenya Ltd & another
    [2016] eKLR
  • Kalpana S Jai & another v Ecobank Kenya Ltd & others
    High Court Commercial and Admiralty Division Civil Case No 477/2009
  • AAT Holdings Limited v Diamond Shields International Ltd
    [2014] eKLR
  • Joseph Ochieng’ & others t/a Aquiline Agencies v First National Bank of Chicago
    [1995] eKLR
  • Ketterman v Hansel Properties Ltd
    [1988] 1 All ER 35
  • Republic v Communication Authority of Kenya & another ex-parte Legal Advice Centre aka Kituo Cha Sheria
    [2015] eKLR
Jurisdiction invoked
Rules 14(6) & (7) and Rule 17(1) of the Employment and Labour Relations Court (Procedure) Rules; Sections 1A, 1B, 3A of the Civil Procedure 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, "JWK v Multimedia University College of Kenya & another (Cause 2041 of 2012) [2019] KEELRC 1006 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1006/eng@2019-07-08

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