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ELRCAllowed· [2021] KEELRC 1784 (KLR)

Zablon Rodgers Mogere v Gilgil Girls Secondary School [2021] KEELRC 1784 (KLR)

Employment and Labour Relations Court
22 April 2021
HWHellen Wasilwa
1,823 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court allowed a late amendment to a claim because it only clarified reliefs already sought and caused the other side no prejudice.

What this practically means

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Executive summary

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The claimant, by a Notice of Motion dated 10th July 2020 brought under Order 1 rules 3, 5 and 10 and Order 8 Rule 3 of the Civil Procedure Rules, Sections 1A and 1B of the Civil Procedure Act and Rule 14(6) of the ELRC (Procedure) Rules 2016, sought leave to amend the memorandum of claim, that the annexed draft amended memorandum be deemed duly filed upon payment of court fees, and costs in the cause. The application was supported by an affidavit of David Nyamweya Mongeri, advocate for the claimant. The respondent opposed through grounds of opposition and submissions, arguing inordinate delay since the suit was filed in 2018, that the amendment raised a new cause of action and departed from the relief sought, that the advocate rather than the claimant swore the affidavit, and that the application was an afterthought and prejudicial. The claimant relied on authority holding that amendments may be allowed at any stage where they do not cause injury or injustice, are not mala fide, and serve to determine the real question in controversy, submitting the amendment merely clarified the reliefs sought. Wasilwa J compared the proposed amended claim with the original and found the only difference was an explicit breakdown of the underpayment, off duty, gratuity and damages already claimed; nothing materially new was introduced and the respondent would not be prejudiced. The court found the application meritorious, allowed it, deemed the amended claim duly filed upon payment of fees, and ordered costs in the cause.

Key legal issues

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01

Whether leave to amend the memorandum of claim should be granted notwithstanding delay

Holding

The application was allowed. The amendment only provided an explicit breakdown of reliefs already claimed (underpayment, off duty, damages, gratuity) and introduced nothing materially new, so the respondent would suffer no prejudice.

Reasoning

The court compared the proposed amended claim with the initial claim and found the only difference was an explicit breakdown of the underpayment, off duty, gratuity and damages already sought. Because nothing materially new was introduced, the amendment aided the court's determination rather than derailing justice. Delay alone was not sufficient to refuse an amendment that clarifies the real questions in controversy.

p. 3

Legal principles established

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  • An amendment to pleadings that does not introduce anything materially new but merely elaborates or clarifies the reliefs already sought should generally be allowed even if brought late, provided no prejudice is caused to the other side.

Court orders

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  1. 1.Leave granted to the claimant to amend the memorandum of claim
  2. 2.The attached draft amended memorandum of claim deemed duly filed upon payment of the requisite court fees
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 1 rules 3, 5 and 10; Order 8 Rule 3; Order 17 rule 2; Order 2 rule 15
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 14(6)
  • Constitution of KenyaArticle 159; Article 50(1) and 50(2)(e)

Cases cited (7)

  • Anthony Mbugua versus Nairobi City Water & Sewerage Company Limited
    [2018] eKLR
  • Institute of Social Accountability & another versus Parliament of Kenya & 3 others
    [2014] eKLR
  • Mose Nyambega Ondieki versus Vice Chancellor, Maasai Mara University & 3 Others
    [2019]
  • Jared Onyango Oodindo versus Civicon Ltd
    [2017] eKLR
  • Central Kenya Limited versus Trust Bank Limited
    [2000] eKLR
  • George Kibata versus George Kuria Mwaura & another
    [2017] eKLR
  • Fran Investment Ltd versus Security Services Ltd
    [2015] eKLR
Jurisdiction invoked
Order 1 rules 3, 5 and 10 and Order 8 Rule 3 of the Civil Procedure Rules, Sections 1A and 1B of the Civil Procedure Act (Cap 21) and Rule 14(6) of the Employment and Labour Relations Court (Procedure) Rules 2016

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, "Zablon Rodgers Mogere v Gilgil Girls Secondary School [2021] KEELRC 1784 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1784/eng@2021-04-22

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