Makau v I & M Bank Limited (Cause E575 of 2020) [2022] KEELRC 1179 (KLR)
The bottom line
#Kenya's Employment Court allowed an employer to amend its defence late, holding that asking permission to amend is different from amending without permission.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was barred by res judicata
The application was not res judicata because the earlier ruling of 21st September 2021 dealt with amendment made without leave, whereas the present motion sought leave to amend for the first time.
The court distinguished the prior determination from the current motion. The September 2021 ruling conclusively determined the issue of amendment made without leave. The present motion was the first time the Respondent sought leave to amend; that was a new issue not previously determined, so res judicata did not apply. The court also noted the Applicant did not submit on the res judicata point, but resolved it on the substance anyway.
Whether leave to amend pleadings should be granted
Leave was granted, applying the settled principles that amendments should be liberally allowed where they do not introduce a new or inconsistent cause of action, cause no undue delay, and cause no injustice to the other side.
The court applied the Central Kenya Limited v Trust Bank Limited principles. The amendments went to the real question in controversy (payment in lieu of notice on the Claimant's alleged failure to serve his notice period), the matter was not yet heard, and the Claimant would have an opportunity to respond. No injustice incapable of compensation by costs was shown.
Legal principles established
#- The doctrine of res judicata applies only where the same issue was previously determined; a new application for leave to amend, distinct from an earlier ruling on amendment without leave, is not res judicata.
Court orders
#- 1.Leave granted to the Respondent/Applicant to file the amended pleadings within 14 days and serve the Claimant/Respondent
- 2.The Claimant/Respondent to have 14 days upon service to file and serve his replies
- 3.Costs of the motion to be in the cause
- Jurisdiction invoked
- Section 3(1) of the Employment and Labour Relations Court Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 25 of the Constitution of Kenya (as cited by the Applicant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau v I & M Bank Limited (Cause E575 of 2020) [2022] KEELRC 1179 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1179/eng@2022-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.