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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 640 (KLR)

Towett K. Geoffrey v Principal- Bomet University College & another [2021] KEELRC 640 (KLR)

Employment and Labour Relations Court
28 October 2021
HWHellen Wasilwa
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court let an employee amend his employment claim to add new prayers, but refused to revive a Kshs. 25.4 million payment demand already decided earlier.

What this practically means

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Executive summary

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The claimant, Towett K. Geoffrey, brought an amended notice of motion dated 29th June 2021 seeking leave to amend his memorandum of claim in an employment dispute against the respondent. He wished to plead the terms of his resignation of 6th February 2021, accepted on 22nd February 2021, and to introduce prayers for payment of Kshs. 25,446,880 and issuance of a certificate of service for the period 18.02.2010 to 10.03.2021. He had earlier filed an application dated 20th April 2021 seeking the same relief, which the court dismissed on 29th June 2021 on the ground that the orders sought were substantive and could only be granted after hearing the main claim. The respondent opposed the amendment, arguing it was res judicata, would change the substratum of the claim, introduced a non-existent consent, and was an abuse of court process; it cited Anthony Mbugua Kamau v Nairobi City Water and Sewerage Company Limited, Peter Ogecha v Kenyatta University and Paul Seki Nzau & 27 Others v Laico Regency Limited. The claimant filed written submissions urging the amendment in the interest of justice. The court, per Wasilwa J, held that the claim for payment of Kshs. 25,446,880 could not be revisited as the issue remained res judicata following the earlier ruling, but allowed the claimant to amend his claim to bring in any prayers, finding no prejudice to the respondent who would have an opportunity to respond. The application was allowed with costs in the cause.

Key legal issues

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01

Res judicata as between the dismissed interlocutory application and the amendment application

Holding

The claim for payment of Kshs. 25,446,880 could not be revisited because the court had already determined it in the ruling of 29/6/2021

Reasoning

The court noted it had previously dismissed the application dated 20th April 2021, holding the orders sought were substantive and could only be granted after hearing the main claim. The claimant, still insistent on the same payment, could not revive it via an amendment application. The court held the issue res judicata, invoking section 7 of the Civil Procedure Act as urged by the respondent.

p. 3
02

Amendment of pleadings

Holding

Leave to amend granted; the claimant may bring in any prayers and the respondent may respond

Reasoning

The court balanced the claimant's desire to plead all material facts against the respondent's claims of prejudice, changed substratum and abuse of process. It found the respondent would not be prejudiced since it would have an opportunity to respond to the amended claim, and allowed the amendment in the interest of justice.

p. 3

Legal principles established

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  • A party may amend pleadings to bring in prayers, provided the other side is not prejudiced, as they will have an opportunity to respond
  • Substantive orders already refused at the interlocutory stage cannot be revisited through an application to amend pleadings - such an issue is res judicata

Court orders

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  1. 1.The claimant's application dated 29th June 2021 is allowed - leave granted to amend the claim; the claimant is free to amend his claim and bring in any prayers he seeks to, and the respondent will be free to respond accordingly
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 22 Rule 26
  • Civil Procedure Rules, 2010Order 34 Rule 5
  • Employment Actsection 51
  • Civil Procedure Actsection 7

Cases cited (3)

  • Anthony Mbugua Kamau v Nairobi City Water and Sewerage Company Limited
    [2018] eKLR
  • Peter Ogecha v Kenyatta University
    [2021] eKLR
  • Paul Seki Nzau & 27 Others v Laico Regency Limited
    Industrial Court at Nairobi Cause Number 405 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over an employment claim (proceedings by way of memorandum of claim)

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, "Towett K. Geoffrey v Principal- Bomet University College & another [2021] KEELRC 640 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/640/eng@2021-10-28

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