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ELRCOtherCause No 48 of 2020· [2021] KEELRC 1363 (KLR)

Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Co Ltd [2021] KEELRC 1363 (KLR)

Employment and Labour Relations Court
1 July 2021
RSRadido Stephen
739 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 throw out a union's amended claim over formatting mistakes, choosing fairness over technicality when no one was actually prejudiced.

What this practically means

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Executive summary

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The Kenya Union of Sugar Plantation & Allied Workers sued West Kenya Sugar Co Ltd in July 2020 alleging unfair suspension and termination of employees including Gordon Ogada. A conservatory-orders Motion was later marked as withdrawn, and the claims of other grievants were withdrawn, leaving only Ogada's termination claim in an Amended Statement of Claim filed on 4 December 2020. The Respondent filed a Notice of Preliminary Objection contending that the Amended Memorandum of Claim was fundamentally and incurably defective because it contravened Rule 14(6) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Order 8 Rule 7 of the Civil Procedure Rules, 2010, which require amended pleadings to bear the date of amendment and to show deletions and additions by striking out and underlining in red ink. The Respondent, relying on Cooperative Insurance Company of Kenya Ltd v PAEM Agencies Company Ltd, argued the defect was fundamental and beyond the saving power of Article 159(2)(d). The Union, relying on Philip Chemwolo v Augustine Kubende and Transcend Media Group Ltd v IEBC, urged that the lapse was a curable blunder not warranting summary dismissal. The court found the breach proved but noted no prejudice was alleged. In the interest of justice it declined to strike out the pleading, instead ordering the Union to file a compliant Amended Memorandum of Claim by 16 July 2021, the Respondent to amend its Response if need be by 30 July 2021, with automatic striking out upon default. The Respondent was awarded the costs of the Objection.

Key legal issues

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01

Effect of failure to endorse an amended pleading as required by Order 8 Rule 7 of the Civil Procedure Rules and Rule 14(6) of the ELRC (Procedure) Rules, 2016

Holding

The breach was established but did not warrant striking out the pleading in the absence of demonstrated prejudice; the Union was directed to file a properly endorsed Amended Memorandum of Claim, with automatic striking out only upon default

Reasoning

The court accepted that the Union had not struck out deleted words nor underlined added words in red as the rules require. However, the Respondent did not claim any prejudice from that failure. Balancing procedural compliance with the imperative of doing justice, the court declined to strike out the pleading and instead gave the Union a defined period to file a compliant amendment, with an automatic striking-out sanction if it defaulted.

p. 2

Legal principles established

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  • Failure to comply with the endorsement requirements of Order 8 Rule 7 (striking out in red deleted words and underlining added words) does not automatically justify striking out an amended pleading where no prejudice is shown; the court may order a conforming amendment instead

Court orders

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  1. 1.The Union to file and serve an Amended Memorandum of Claim in conformity with Order 8 Rule 7 of the Civil Procedure Rules on or before 16 July 2021
  2. 2.The Respondent to file and serve an amended Response if need be on or before 30 July 2021
  3. 3.If the Union defaults, the Amended Memorandum of Claim will stand automatically struck out
  4. 4.The Respondent to have costs of the Objection

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 14(6)
  • Civil Procedure Rules, 2010Order 8 Rule 7
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • Cooperative Insurance Company of Kenya Ltd v PAEM Agencies Company Ltd
    (2014) eKLR
  • Philip Chemwolo & Ar v Augustine Kubende
    (1986) eKLR
  • Transcend Media Group Ltd v Independent Electoral Boundaries Commission
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016; Article 159(2)(d) of the Constitution of Kenya, 2010 (referenced in submissions)

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, "Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Co Ltd [2021] KEELRC 1363 (KLR)", Case Analysis (2021). Cause No 48 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1363/eng@2021-07-01

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