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ELRCPartially AllowedCause No 2147 of 2016· [2020] KEELRC 947 (KLR)

Isaac Juma Kasera & 10 others v Bidco Oil Refineries Limited [2020] KEELRC 947 (KLR)

Employment and Labour Relations Court
5 June 2020
1,055 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Employment Court allowed workers to strengthen their unfair dismissal case but refused to add a colleague whose claim had run out of time.

What this practically means

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Executive summary

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The claimants, through Namada & Company Advocates, moved the Court by notice of motion dated 27.11.2019 under section 12 of the Employment and Labour Relations Court Act and Rule 14(6) of the ELRC (Procedure) Rules seeking leave to amend the memorandum of claim to plead particulars of illegality and unfairness of dismissal, and leave to enjoin a proposed 12th claimant, Felix Omondi Otieno, who they said had been erroneously left out by former counsel. The respondent, through the replying affidavit of Judy Momanyi filed on 28.02.2020 and Oraro & Company Advocates, opposed, arguing the claim had been filed on 08.09.2015 at Nyeri and transferred to Nairobi on 13.10.2016; that introducing the 12th claimant over four years later was an afterthought; and that the claimants were guilty of laches. Applying the Court of Appeal decision in Central Kenya Limited v Trust Bank Limited & 5 Others, the Court held the amendments should be allowed because they particularise matters already pleaded, do not constitute a new cause of action, cause no material prejudice, and the hearing had not commenced. However, joinder of the 12th claimant was refused: his cause of action accrued on 08.09.2015 under section 90 of the Employment Act, 2007, and suit should have been filed by 12.03.2018; allowing joinder would circumvent limitation and introduce a time-barred claim. The application was partially allowed: leave to amend granted excluding the 12th claimant; timelines for filing amended claim and response set for 12.06.2020 and 26.06.2020; costs in the cause.

Key legal issues

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01

Whether leave should be granted to amend the memorandum of claim

Holding

Granted - the amendments particularise matters already pleaded and do not introduce a new cause of action

Reasoning

Applying the Court of Appeal criteria in Central Kenya Limited v Trust Bank, the Court found no material bar, no prejudice to the respondent, and no undue delay since the main suit's hearing had not commenced. The respondent would have an opportunity to file an amended response. Amendments flowing from matters already pleaded facilitate the just, proportionate, expeditious and complete determination of the real issues in dispute and are not a new cause of action.

p. 2
02

Whether the proposed 12th claimant should be joined

Holding

Refused - the joinder would circumvent limitation and the claimants were guilty of laches

Reasoning

The proposed 12th claimant was allegedly terminated on 12.03.2015, so under section 90 of the Employment Act, 2007 suit had to be filed on or before 12.03.2018. Introducing him more than five years after the suit was filed would prejudice the respondent and would not facilitate the efficient, proper and complete determination of the disputes. The applicants failed to establish a sound case for the joinder.

p. 2

Legal principles established

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  • A party should be allowed to amend pleadings to plead the whole of his claim provided there is no undue delay, no vested interest is affected, and no uncompensatable prejudice is caused
  • Joinder cannot be used to circumvent statutory limitation; enjoining a party whose claim is time-barred is improper

Court orders

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  1. 1.Leave granted to the claimants to file and serve an amended memorandum of claim in terms of the draft exhibited, excluding the proposed 12th claimant and pleadings about him
  2. 2.Amended memorandum of claim to be filed and served by 12.06.2020; amended memorandum of response by 26.06.2020
  3. 3.Parties to take steps for expeditious hearing and determination of the suit
  4. 4.Costs of the application in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court (Procedure) RulesRule 14(6)
  • Employment Act, 2007Section 90

Cases cited (1)

  • Central Kenya Limited versus Trust Bank Limited & 5 Others
    [2000]eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Rule 14(6) of the Employment and Labour Relations Court (Procedure) Rules

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, "Isaac Juma Kasera & 10 others v Bidco Oil Refineries Limited [2020] KEELRC 947 (KLR)", Case Analysis (2020). Cause No 2147 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/947/eng@2020-06-05

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