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ELRCAllowedCause No 59 of 2018· [2021] KEELRC 2171 (KLR)

Jared Edwin Kawimbi v Modern Coast Building and Construction Ltd [2021] KEELRC 2171 (KLR)

Employment and Labour Relations Court
11 February 2021
1,847 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court allowed a claimant to fix a typo in an employer's name, ruling that correcting a misnomer does not restart the limitation clock.

What this practically means

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Executive summary

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The Claimant sued a company misnamed as Modern Coast Building & Construction Ltd, a typing error made by his Counsel; the correct entity was Modern Coast Builders & Contractors Ltd. The Respondent entered appearance and filed a Memorandum of Response under the misnomer and even consented on 18th February 2020 to admit its Response, with costs and adjournment fees payable. On 17th September 2020, when the Respondent had failed to comply with the consent, its Counsel raised the naming issue for the first time. An oral application to amend was declined at that stage because the Respondent was unrepresented, and the Claimant then filed the application dated 18th September 2020 seeking leave to amend to correct the Respondent's name. The Respondent opposed, arguing the amendment would amount to a fresh suit outside the three-year limitation period under Section 90 of the Employment Act and would cause prejudice under the doctrine of laches. The single issue was whether leave to amend should issue after closure of pleadings. Relying on Rule 14(6) of the ELRC (Procedure) Rules, 2016, Order 8 Rule 3(3) of the Civil Procedure Rules and authorities on amendment of pleadings, the Court held the mistake was genuine, made in good faith, and occasioned no prejudice, since the Respondent was already actively involved in the proceedings and had been all along aware the claim was against it. The Court allowed the amendment, deemed the amended Memorandum of Claim duly filed upon payment of fees, made the Respondent's right of response subject to payment of outstanding costs and adjournment fees, and ordered costs of the application in the cause.

Key legal issues

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01

Leave to amend pleadings after closure of pleadings

Holding

Leave was granted; the amendment was made in good faith and caused no discernible prejudice

Reasoning

Rule 14(6) of the ELRC (Procedure) Rules, 2016 permits amendment after closure of pleadings with leave, and Order 8 Rule 3(3) of the Civil Procedure Rules permits correction of a party's name even where substitution is alleged, if the mistake was genuine and not misleading. The Court found the erroneous name a typing error by Counsel, no bad faith, and the Respondent already actively engaged in the proceedings, so no prejudice could arise.

p. 3
02

Limitation - whether the amendment institutes a fresh, statute-barred suit under Section 90 of the Employment Act

Holding

No new suit is born by merely correcting the Respondent's name

Reasoning

The Respondent argued the amendment would introduce a suit outside the three-year limitation period. The Court held the intended Respondent, the actual employer, was all along aware the claim was against it: its advocates had filed a Memorandum of Appearance and Response in the misnamed proceedings, and Counsel had consented to admit the Response without objection on the name. Correcting the name therefore related back to the original suit.

p. 3
03

Good faith and conduct of parties

Holding

A party admitted on concession cannot defeat the suit by technical manoeuvres, especially where in default of court orders

Reasoning

The Respondent only raised the misnaming after failing to comply with a consent order requiring payment of costs and adjournment fees. The Court held parties must come to court in good faith, and a party admitted into proceedings on concession cannot turn around and defeat the other party's case by lawyerly manoeuvre.

p. 2

Legal principles established

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  • Correction of a party's name by amendment does not institute a new suit where the correct party was all along aware the claim was against it

Court orders

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  1. 1.The Claimant's application dated 18th September 2020 is allowed
  2. 2.Upon payment of requisite court fees, the annexed amended Memorandum of Claim is deemed duly filed
  3. 3.The Respondent's right to respond to the amended Memorandum of Claim is subject to payment of outstanding Claimant's costs and court adjournment fees
  4. 4.Costs of the application in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 14(6)
  • Civil Procedure RulesOrder 8 Rule 3(3)
  • Employment Act, 2007Section 90

Cases cited (2)

  • Mose Nyambega Ondieki v Vice Chancellor, Maasai Mara University & 3 others
    [2018] eKLR
  • Institute for Social Accountability & another v Parliament of Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 14(6); Order 8 Rule 3(3) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jared Edwin Kawimbi v Modern Coast Building and Construction Ltd [2021] KEELRC 2171 (KLR)", Case Analysis (2021). Cause No 59 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2171/eng@2021-02-11

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