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ELRCDismissedCause No 773 of 2016 (consolidated with Causes No 774–798 of 2016)· [2021] KEELRC 1855 (KLR)

Amina Nyadzua Chara v Hantex Garments (EPZ) Limited [2021] KEELRC 1855 (KLR)

Employment and Labour Relations Court
15 April 2021
LNLINNET NDOLO
1,985 words in judgment
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The bottom line

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A Kenyan employment court refused to let an employer change its case after six years of trial, punishing late amendments with costs.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (Linnet Ndolo J, 15 April 2021) determined a Notice of Motion dated 5 February 2021 by the Respondent, seeking leave to amend its Response to the Memorandum of Claim, and to file a supplementary list and bundle of documents and witness statement in a consolidated series of causes (Cause No 773 of 2016 as lead file). The Respondent argued that documents, including minutes of a disciplinary hearing, a summary dismissal letter, payroll, NSSF remittance and leave payment records, were only retrieved on 7 October 2020, having been displaced when its offices were vandalised during industrial action and strikes from 2015. The Claimants opposed, accusing the Respondent of laxity and bad faith, and asserting the amendments, which included a new counterclaim, would revert the matter to pre-trial and cause grave prejudice. The Court framed a single issue: whether the Respondent had made out a case for leave to amend and adduce additional evidence at that stage. Applying Rule 14(6) of the ELRC Procedure Rules, 2016 and the principles in WAB Hotels Ltd, the Court held that the Respondent, having played along in the trial for six years and only sought to alter its entire case after hearing the Claimants, was indicted for bad faith. The application was dismissed with costs to the Claimants, and the Respondent's case was to proceed on the pleadings, documents and witness statements already on record.

Key legal issues

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01

Whether leave should be granted to amend pleadings and adduce additional evidence after closure of the Claimants' case

Holding

The application was dismissed; the Respondent's conduct, waiting through the trial before seeking to introduce a counterclaim and new evidence, amounted to bad faith and would prejudice the Claimants

Reasoning

The Court noted Rule 14(6) permits post-closure amendments only with leave. Although amendments may be allowed at any stage to determine the true merits, the discretion is equitable. The Respondent had participated in the litigation for six years, adjourned its own defence hearing severally, and only sought to introduce a counterclaim and additional documents after seeing the Claimants' case. The Court found no explanation of how the documents were discovered and held that granting the application would be unjust.

p. 3

Legal principles established

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  • After close of pleadings, a party may only amend pleadings with leave of the Court, and the other party has a corresponding right to amend its pleadings
  • A party who delays seeking amendment until after hearing the opponent's case, thereby seeking to fundamentally alter its case, may be denied leave for bad faith and prejudice

Court orders

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  1. 1.The Respondent's application dated 5th February 2021 is dismissed with costs to the Claimants
  2. 2.The Respondent's case will proceed on the basis of the pleadings, documents and witness statements already on record

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 14(6)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (3)

  • WAB Hotels Ltd (In Receivership) & another v Industrial Development Bank Ltd
    [2020] eKLR
  • Giro Commercial Bank Limited v Michael Philip Theuri & 4 others
    [2014] eKLR
  • Johana Kipekmoi Too v Hellen Tum
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 14(6)

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, "Amina Nyadzua Chara v Hantex Garments (EPZ) Limited [2021] KEELRC 1855 (KLR)", Case Analysis (2021). Cause No 773 of 2016 (consolidated with Causes No 774–798 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1855/eng@2021-04-15

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