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ELRCDismissedCause No. 1203 of 2016· [2021] KEELRC 1394 (KLR)

Chrstopher Imboti v Josan Security Services [2021] KEELRC 1394 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
10 June 2021
MMM. Mbaru
1,421 words in judgment
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The bottom line

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A Kenyan court dismissed a security guard's entire employment claim because his court documents lacked key details like his employment start date.

What this practically means

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Executive summary

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The claimant, a former security officer of the respondent, sued unopposed (no appearance or defence was filed) claiming underpayment at Ksh.6,000 instead of Ksh.12,200 per month, house allowance, annual leave, overtime, compensation for unlawful holding benefits, damages for hardship arising from wrongful termination on 26 January 2015, and damages for a malicious theft complaint made to the police. He testified and filed written submissions. The court, per M. Mbaru J, held that the pleadings were at variance with the evidence and submissions and fatally defective for want of particulars. The Memorandum of Claim omitted the employment date, a crucial fact for tabulating underpayments, house allowance and terminal dues, and the damages claim for the theft accusation and arrest pleaded no particulars of loss or injury. Applying Rule 4 of the Industrial Court (Procedure) Rules, 2014 and Order 2 rule 4 of the Civil Procedure Rules, and the authorities of Kathuri, Odhiambo and Ole Tukai, the court reaffirmed that parties are bound by their pleadings, evidence and submissions cannot deviate from them, and gaps must be cured by amendment. Assessing the claimed dues would be without a start date and would not serve justice. The claim was dismissed in its entirety with no orders on costs, delivered on 10 June 2021 at Nairobi.

Key legal issues

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01

Particularisation of claims under Rule 4 of the Industrial Court (Procedure) Rules, 2014

Holding

The claimant's Memorandum of Claim was defective for want of particulars, including the crucial employment start date, rendering assessment of dues impossible

Reasoning

Rule 4 required a statement of claim to specify facts, grounds, employment benefits sought and relief. The claimant pleaded only that he was employed as a security officer at Ksh.6,000 per month, without the employment date needed to tabulate underpayments, house allowance and terminal dues. Such generality offended the rule and could not be cured in written submissions.

p. 2
02

Binding effect of pleadings on evidence and submissions

Holding

A party is bound by their pleadings; matters raised in written submissions that ought to be in pleadings cannot sustain a claim

Reasoning

Relying on Kathuri, Odhiambo and Ole Tukai, the court held that in an adversarial system parties set the agenda through pleadings, evidence must not deviate from them, and gaps must be cured by amendment. The claimant's testimony on arrest and loss, and expanded claims in submissions, went beyond the pleadings and could not be entertained.

p. 2

Legal principles established

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  • Parties are bound by their pleadings and evidence cannot deviate from pleadings unless amended
  • A party cannot raise a different case from that pleaded without due amendment
  • General claims with gaps cannot be left to be filled by assumptions of the court; amendments are the avenue to cure pleading gaps

Court orders

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  1. 1.The claim as filed is dismissed
  2. 2.No orders on costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under written law (Industrial Court (Procedure) Rules, 2014 invoked for the reference of the dispute)

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, "Chrstopher Imboti v Josan Security Services [2021] KEELRC 1394 (KLR)", Case Analysis (2021). Cause No. 1203 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1394/eng@2021-06-10

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