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ELRCPartially AllowedNot stated in the extract· [2020] KEELRC 283 (KLR)

Juliet Wamiri v James R. Njenga & 7 others [2020] KEELRC 283 (KLR)

Employment and Labour Relations Court
27 October 2020
HWHellen Wasilwa
2,037 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 ruled that revoking a disputed transfer does not end an employee's case, allowing her to amend her claim over related disciplinary actions.

What this practically means

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Executive summary

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The court handled two competing applications arising from an employment dispute. The Respondent sought striking out of the Claimant's suit under Section 20(1) of the ELRC Act and Rules 17(1) and 19 of the ELRC (Procedure) Rules, 2016, arguing that the transfer decision had been revoked and the Claim compromised, academic and an exercise in vain. The Claimant opposed, pointing to ongoing disciplinary actions arising from the transfer and an intended amendment to ventilate those issues, and argued bad faith. The Claimant in turn sought leave under Rule 14(6) to amend her Statement of Claim to plead systematic unfair labour practices occurring during and after the revoked transfer, contending that the amendment introduced no new cause of action but merely captured issues connected to her transfer. The Respondent opposed the amendment as res judicata, an afterthought and an abuse of process, citing authorities on striking out suits lacking substratum and on res judicata. The court reviewed its prior orders, which had stopped the transfer and stayed disciplinary proceedings, and observed that while the transfer itself had been conclusively resolved, consequential actions emanating from it remained unresolved and could only be determined after a full hearing of the main claim. The application to strike out was therefore denied. Leave to amend was granted but restricted: the Claimant could not introduce new issues unless they arose primarily from the court's orders in the suit. Costs were ordered to be costs in the Claim.

Key legal issues

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01

Whether the suit was overtaken by events and should be struck out

Holding

The application to strike out was denied

Reasoning

The court noted that although the transfer issue had been conclusively resolved by revocation, multiple applications and orders arose afterwards, including stayed disciplinary proceedings. Whether the Claimant had been fairly treated in those consequential actions could only be determined after hearing the main claim; striking it out would leave those issues undetermined and expose her to potential unfair labour practices.

p. 4
02

Whether leave to amend the Claim should be granted

Holding

Leave to amend granted but circumscribed

Reasoning

The Claimant sought to plead unfair labour practices arising from the revoked transfer and subsequent disciplinary actions. The court permitted the amendment because the new issues flowed from orders made in the suit, but restricted the Claimant from introducing matters unrelated to the Claim, balancing the interest of determining real controversies against the Respondent's complaint of oppression and abuse of process.

p. 4
03

Whether the proposed amendments were res judicata

Holding

The res judicata objection did not bar the amendment

Reasoning

The Respondent argued that issues the Claimant sought to introduce had been conclusively dealt with in the Ruling of 10th December 2019, relying on ERI Limited v Equatorial Commercial Bank. The court, however, found that actions taken after and emanating from the transfer had not been conclusively determined and could properly be litigated within the pending claim through amendment.

p. 4

Legal principles established

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  • Revocation of the impugned action does not necessarily render a claim moot where consequential and collateral actions remain unresolved
  • A claim cannot be struck out as academic merely because interim relief was achieved; the court must hear the main claim to determine outstanding issues

Court orders

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  1. 1.The Respondent's application dated 6th March, 2020 to strike out the Claim is denied
  2. 2.The Claimant's application dated 23rd June, 2020 to amend the Claim is allowed, provided no new matter not related to the Claim is introduced
  3. 3.Costs in the Claim

Authorities

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Legislation

  • Employment & Labour Relations Court ActSection 20(1)
  • Employment & Labour Relations Court ActSection 12
  • Employment & Labour Relations Court (Procedure) Rules, 2016Rules 17(1), 19 and 14(6)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (4)

  • Mose Ondieki Vs Vice Chancellor, Maasai Mara University & 3 Others
    (2018) eKLR
  • M/S Bandari Enterprises (K) Ltd Vs Musinga & Co. Advocates
    Mombasa H.C Misc Civil Suit No. 72 of 2005
  • ERI Limited Vs Equatorial Commercial Bank & Another
    Kisumu HCCC No. 120 of 2010
  • Kassan Vs Bank of Baroda (Kenya) Limited
    (2002) eKLR
Jurisdiction invoked
Section 12 and Section 20(1) of the Employment and Labour Relations Court Act; Employment and Labour Relations Court (Procedure) Rules, 2016, Rules 14(6), 17(1) and 19

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, "Juliet Wamiri v James R. Njenga & 7 others [2020] KEELRC 283 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/283/eng@2020-10-27

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