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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 12 (KLR)

Humphrey Nyaga Thomas & 25 others v Kenyatta University [2020] KEELRC 12 (KLR)

Employment and Labour Relations Court
10 December 2020
MMM. Mbaru
1,621 words in judgment
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The bottom line

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Kenya's Employment Court refused to strike out an amended petition filed without leave, prioritising a fair hearing over procedural technicality but awarding costs.

What this practically means

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Executive summary

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Kenyatta University, the respondent in a constitutional petition filed by the petitioners on 7th September 2018, brought a Notice of Motion dated 12th November 2020 seeking to strike out and expunge from the record the petitioners' Amended Petition dated 11th August 2020. The respondent, through the affidavit of its advocate Grishon Ng'ang'a Thuo, argued that the petitioners amended the petition radically - including a fresh claim of Kshs.178 million - without leave of court as required by Rule 18 of the Mutunga Rules, and served it only 11 days before a hearing date taken ex parte, amounting to an ambush. It relied on Base Titanium Limited v County Government of Mombasa. The petitioners, through the affidavit of the 1st petitioner Humphrey Nyaga Thomas, contended that a party may amend at any time before hearing, that leave under Rule 18 is discretionary, that the amendments ventilate the real issues, and that the respondent could still reply, distinguishing Base Titanium as concerning incomplete documents. M. Mbaru J held that after the close of pleadings amendments require leave under Rule 18 of the Mutunga Rules and Rules 7 and 14(6) of the ELRC (Procedure) Rules, 2016, and the Amended Petition was indeed filed irregularly. However, applying the liberal approach in Eastern Bakery v Castelino and St. Patrick's Hill School v Bank of Africa, the omission was not fatal: the amended petition had been served before the hearing, the hearing date had been overtaken by events, and admitting it with costs and a 14-day right of reply secured substantive justice and the right to be heard. The application was allowed only to the extent that the Amended Petition was admitted on the record, the respondent was given 14 days to file an Amended Response, and costs of the application were awarded to the respondent.

Key legal issues

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01

Whether an amended petition filed after close of pleadings without leave must be struck out

Holding

The filing was irregular, being contrary to Rule 18 of the Mutunga Rules and Rules 7 and 14 of the ELRC (Procedure) Rules, 2016, but the omission was not fatal; the amended petition was admitted with costs and a right of reply to the respondent.

Reasoning

The court traced the general rule on amendments to Eastern Bakery v Castelino, that amendments should be freely allowed absent injustice compensable by costs. It read Rule 18 of the Mutunga Rules with Rules 7 and 14(6) of the ELRC Procedure Rules, 2016, confirming leave is required after close of pleadings. Although the petitioners breached this, the amended petition was served before the hearing, and the respondent could still reply within a reasonable time. Admitting it secured substantive justice and the right to be heard, with costs compensating the respondent.

p. 3
02

Whether the respondent was prejudiced or ambushed by the late service of the amended petition

Holding

No lasting prejudice; the hearing was overtaken by events and the respondent was given a 14-day right of reply.

Reasoning

The respondent was served the amended petition together with the hearing notice 11 days before the hearing date and chose to file the striking-out application rather than a reply. The scheduled hearing of 16th November 2020 was adjourned and overtaken by events. The court found the respondent had a fair chance to see the amendments and would, upon being granted fourteen days to file an Amended Response, suffer no prejudice, with each party retaining a fair chance to urge its case.

p. 3

Legal principles established

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  • A party may amend pleadings before service or before the close of pleadings; after the close of pleadings, amendments may only be made with leave of the court
  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, injustice being curable by costs
  • Failure to obtain leave to amend after close of pleadings is not necessarily fatal where the amendment is served in time and the other party can be given a fair chance to respond

Court orders

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  1. 1.The Amended Petition is admitted on the record
  2. 2.The respondent is given 14 days to file an Amended Response to the Amended Petition
  3. 3.The respondent is awarded costs of the application

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2016 (Mutunga Rules)Rule 18
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7; Rule 14(6)
  • Limitation ActReferred to in principles quoted from Ochieng and Others v First National Bank of Chicago

Cases cited (4)

  • Base Titanium Limited versus County Government of Mombasa & another
    [2016] eKLR
  • Eastern Bakery versus Castelino
    (1958) E.A.
  • St. Patrick's Hill School Limited v Bank of Africa Kenya Limited
    [2018] eKLR
  • Ochieng and Others v First National Bank of Chicago
    Civil Appeal Number 147 of 1991
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2016 (Mutunga Rules) - constitutional petition before the ELRC

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, "Humphrey Nyaga Thomas & 25 others v Kenyatta University [2020] KEELRC 12 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/12/eng@2020-12-10

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