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ELRCPartially AllowedNot stated on the face of the judgment (Claimant's notice of motion dated 26th October 2021)· [2022] KEELRC 1265 (KLR)

Oratah v Hornbill Pub Limited (Cause 1781 of 2016) [2022] KEELRC 1265 (KLR)

Employment and Labour Relations Court
8 July 2022
MOMaureen Onyango
1,788 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) delivered on 8 July 2022 on the Claimant's notice of motion dated 26 October 2021 seeking leave to amend his statement of claim under Rule 14(6) of the ELRC (Procedure) Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution. The Claimant, a former night chief security officer and stock taker employed by the Respondent from 25 November 2006 until his resignation on 16 May 2016, sought to add a claim for unpaid dues of approximately Kshs.1,019,516.00 omitted by his former advocates. The Respondent opposed, arguing the application was made in bad faith, was an afterthought after pre-trial conference, involved inexcusable delay and laches, and sought to introduce a new, time-barred cause of action; it also alleged prejudice under Article 50(2)(e). Disposing of the application by written submissions, the court framed a single issue: whether leave to amend should be granted. Applying Rule 14(6) and the principle in Institute for Social Accountability & Another v Parliament of Kenya & 3 Others, the court held that the power to amend is discretionary and should be exercised to do justice, that amendments should be granted freely where justified, and that the Respondent had not identified any prejudice incapable of compensation by costs, as it could amend its defence and be heard. Leave to amend was granted, with the amended claim to be filed and served within 14 days and a corresponding 14-day window for the Respondent's reply. The costs of the amendment were ordered to be borne by the Claimant in any event.

Key legal issues

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01

Whether leave should be granted to the Claimant to amend the statement of claim after the close of pleadings

Holding

Leave to amend was granted; the Respondent's objections of delay and introduction of a new cause of action did not establish prejudice incapable of compensation by costs

Reasoning

The court noted that Rule 14(6) permits post-close-of-pleadings amendments with leave, and that the power is discretionary and to be exercised so as to do what justice requires. Relying on Institute for Social Accountability, the object of amendment is to determine disputes on the true state of facts rather than on false hypotheses of pleaded facts. The Respondent failed to specify any prejudice it would suffer, and would have an opportunity to amend its defence and be heard. Delay was attributed to the Claimant's former counsel.

p. 4
02

Whether the Respondent had shown valid grounds to refuse the amendment

Holding

The Respondent's grounds of undue delay and sneaking in a time-barred cause of action were rejected because no concrete prejudice was demonstrated

Reasoning

The court held that the Respondent's reasons were not valid reasons to refuse leave. It observed that the Respondent had not stated what prejudice it would suffer should the amendment be granted, and that the Respondent would have an opportunity to amend its defence and to be heard at the hearing, meaning any inconvenience could be compensated.

p. 4

Legal principles established

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  • Amendments should be granted freely provided there are justifiable reasons, no injustice to the other party, and no loss incapable of compensation by costs
  • An amendment should be allowed if made in good faith and if it will not prejudice the opposite party in a way that cannot be compensated by costs or otherwise

Court orders

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  1. 1.Leave granted to the Claimant to amend the memorandum of claim as prayed
  2. 2.The amended memorandum of claim to be filed and served upon the Respondent within 14 days from the date of the ruling
  3. 3.Corresponding leave granted to the Respondent to file a reply to the amended claim within 14 days of service
  4. 4.The costs of the amendment to be borne by the Claimant in any event

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 14(6)
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Sections 1A, 1B and 3A
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 50(2)(e)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • 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
  • Central Kenya Limited v Trust Bank Limited
    (2000) 2 EA 365
  • Beatrice Gikunda v CFC Life Assurance Limited
    [2020] eKLR
  • Allan George Njogu Kamau v National Bank of Kenya Limited
    [2019] eKLR
  • John Mulwa Kang'aatu v Pan African Insurance Co. Ltd
    (2015) eKLR
Jurisdiction invoked
Rule 14(6) of the Employment and Labour Relations Court (Procedure) Rules, 2016; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159 of the Constitution of Kenya, 2010

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, "Oratah v Hornbill Pub Limited (Cause 1781 of 2016) [2022] KEELRC 1265 (KLR)", Case Analysis (2022). Not stated on the face of the judgment (Claimant's notice of motion dated 26th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1265/eng@2022-07-08

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