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ELRCDismissedNot stated in the excerpt· [2020] KEELRC 625 (KLR)

Mary Munyuli Luseka v Brand Kenya Board [2020] KEELRC 625 (KLR)

Employment and Labour Relations Court
28 July 2020
HWHellen Wasilwa
1,440 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to let Brand Kenya Board swap itself out of a case or add new claims, because the amendments added nothing new.

What this practically means

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Executive summary

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This was a ruling on the Respondent's application dated 18/2/2020 in a Petition filed on 28/5/2018 by an employee (formerly acting CEO) of the Brand Kenya Board. The Respondent sought leave to amend the pleadings to substitute Brand Kenya Board with its successor, the Kenya Export Promotion and Branding Agency (Brand-KE), following Legal Notice 110 of 9/8/2019 which revoked the Brand Kenya Board Order of 2008, and to amend its Answer to include a Cross-Petition alleging loss and damage caused by the Petitioner's negligence, fraud and breach of her employment contract. The Respondent argued the Cross-Petition fell within the Court's jurisdiction under Article 162(2) and Section 12 of the ELRC Act, that amendments should be freely allowed before trial, and that the amendment would avoid multiplicity of suits. The Petitioner opposed, contending the amendments were repetitive of pleadings already on record, an abuse of process, an attempt to change the nature of the matter, and mala fides given the delay of three years since filing. After considering written submissions, the court found the proposed substitution unsettling since the Petition was the Petitioner's own and the Respondent would benefit if the Petitioner had sued the wrong party. The court further found that the intended Cross-Petition contents were already pleaded in the Response, so nothing new would be achieved. The application was dismissed with costs in the Petition.

Key legal issues

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01

Whether a respondent may amend the pleadings to substitute a new respondent

Holding

The court declined; substitution of the respondent at the respondent's own instance was found improper and unsettling

Reasoning

The court reasoned that the Petition belongs to the Petitioner, who chose whom to sue. If she sued the wrong party, the Respondent benefits from that mistake; it is not for the Respondent to reconstitute the Petition by amendment to add a different party.

p. 2
02

Whether leave to include a Cross-Petition should be granted

Holding

Refused, as the intended amendments were already pleaded in the Response on record

Reasoning

The court found the contents of the proposed Cross-Petition were already contained in the Respondents' filed Response. Amending the Response would achieve nothing new, so the amendment was unnecessary and the application was dismissed.

p. 3

Legal principles established

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  • A respondent cannot use an amendment to introduce a new party to a petition filed by the petitioner; if the petitioner sued the wrong party, the respondent benefits from that mistake
  • Leave to amend will not be granted where the proposed amendments merely repeat matters already pleaded

Court orders

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  1. 1.Application dated 18/2/2020 dismissed
  2. 2.Costs in the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 50
  • Employment and Labour Relations Court ActSection 12
  • Brand Kenya Board Order2008 Order revoked by Legal Notice 110 of 9/8/2019

Cases cited (5)

  • Paul Koech vs. Robert Kipkoech Mutai
    [2019] eKLR
  • John Nahashon Mwangi vs. Kenya Finance Bank Limited (in liquidation)
    [2015] eKLR
  • Re Winding up of Consolidated Marine Contractors Limited (Comarco Limited
    [2016] eKLR
  • Kassam vs. Bank of Baroda
    [2002] eKLR
  • Abdul Karim Khan vs. Mohamed Roshan
    [1965] EA 289
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act (as invoked by the parties)

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, "Mary Munyuli Luseka v Brand Kenya Board [2020] KEELRC 625 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/625/eng@2020-07-28

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