Jared Edwin Kawimbi v Modern Coast Building and Construction Ltd [2021] KEELRC 2171 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Leave to amend pleadings after closure of pleadings
Leave was granted; the amendment was made in good faith and caused no discernible prejudice
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.
Limitation - whether the amendment institutes a fresh, statute-barred suit under Section 90 of the Employment Act
No new suit is born by merely correcting the Respondent's name
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.
Good faith and conduct of parties
A party admitted on concession cannot defeat the suit by technical manoeuvres, especially where in default of court orders
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.
Legal principles established
#- 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
#- 1.The Claimant's application dated 18th September 2020 is allowed
- 2.Upon payment of requisite court fees, the annexed amended Memorandum of Claim is deemed duly filed
- 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.Costs of the application in the cause
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Makau v I & M Bank Limited (Cause E575 of 2020) [2022] KEELRC 1179 (KLR)[2022] KEELRC 1179 (KLR)12 Jul 2022
Cite this brief
#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.