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ELRCPartially AllowedPetition No. 95 of 2019· [2022] KEELRC 213 (KLR)

David Muthui Ndegwa v Director of Public Prosecution & another [2022] KEELRC 213 (KLR)

Employment and Labour Relations Court
18 March 2022
MOMaureen Onyango
2,029 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 public officer to amend his petition against the ODPP and dismissed an attempt to throw out his case as time-barred.

What this practically means

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Executive summary

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This is a ruling on the Petitioner's Notice of Motion dated 15th November 2019 seeking leave to amend the petition dated 12th June 2019 in an employment and constitutional petition against the Office of the Director of Public Prosecutions and the Attorney General. The 1st Respondent filed a preliminary objection arguing the petition was statutorily time barred under Section 4(1) of the Limitation of Actions Act as read with Section 90 of the Employment Act, and that the amendment application was frivolous and an abuse of process. The 2nd Respondent, though not filing pleadings, opposed in submissions, contending the amendments were an afterthought and that the court lacked jurisdiction. The Petitioner relied on Central Bank of Kenya Ltd v Trust Bank Ltd on the court's wide discretion to allow amendments; the 1st Respondent relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and Mumo Matemu. Justice Maureen Onyango, applying Rule 13(6) of the ELRC (Procedure) Rules and Order 8 Rules 3 and 5 of the Civil Procedure Rules, held that none of the Respondents had given valid reasons to refuse the amendment, and that delay alone is not a ground unless it causes prejudice. On the preliminary objection, following Mukisa Biscuit, she held that when the cause of action accrued is a factual issue resolvable only after hearing the parties, so the objection was not a pure point of law. The preliminary objection was dismissed, leave to amend was granted, the Petitioner was directed to file the amended petition within 14 days, and costs of both applications were put in the cause.

Key legal issues

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01

Whether leave to amend the petition should be granted

Holding

Leave to amend was granted as the respondents gave no valid reason to refuse; amendments do not alter the cause of action but better particularize the issues

Reasoning

The court has wide discretion to allow amendment, limited only by considerations of prejudice, delay affecting resolution, and necessity for just determination. None of the respondents filed a response to the application; the only objection in submissions was that the amendments should have been in the original petition, which is precisely why the law permits amendment. No valid ground for refusal was established.

p. 3
02

Whether the petition is statute-barred under Section 4(1) of the Limitation of Actions Act as read with Section 90 of the Employment Act

Holding

The preliminary objection was dismissed because the question of when the cause of action arose requires evidence and cannot be resolved as a pure point of law

Reasoning

Following Mukisa Biscuit, a preliminary objection must be a point of law argued on the assumption that all pleaded facts are correct, and cannot be raised if any fact must be ascertained. Whether the claim arose on the date of the petitioner's interdiction is disputed and can only be determined after hearing the parties, so the objection fails.

p. 3

Legal principles established

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  • A preliminary objection cannot be raised where facts must be ascertained or where judicial discretion is sought
  • Delay is not a ground for declining leave to amend unless it prejudices the other parties

Court orders

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  1. 1.The application to amend the petition is allowed
  2. 2.The Petitioner is directed to file the amended petition within 14 days
  3. 3.The preliminary objection filed by the 1st Respondent is dismissed
  4. 4.Costs of both applications shall be in the cause

Authorities

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Legislation

  • Constitution of the Republic of KenyaArticles 2, 10, 22, 23, 21, 29, 41, 43, 47, 159(2)(d), 48
  • Public Service Commission ActSections 66, 68, 69, 72
  • Fair Administrative Actions Act
  • Limitation of Actions ActSection 4(1)
  • Employment ActSection 90
  • Employment and Labour Relations Court (Procedure) RulesRule 13(6)
  • Civil Procedure RulesOrder 8 Rules 3 and 5; Order 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Central Bank of Kenya Ltd v Trust Bank Ltd
    (2002) 2 E.A 365 / [2002] EA 365
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd.
    (1969) EA 696
  • Mumo Matemu v Trusted Society of Human Rights Alliance
    [2013] eKLR
Jurisdiction invoked
Articles 2, 10, 22, 23, 21, 29, 41, 43, 47 of the Constitution of the Republic of Kenya; Employment and Labour Relations Court (Procedure) Rules, Rule 13(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, "David Muthui Ndegwa v Director of Public Prosecution & another [2022] KEELRC 213 (KLR)", Case Analysis (2022). Petition No. 95 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/213/eng@2022-03-18

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