Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition No E193 of 2021· [2023] KEELRC 358 (KLR)

Muthiani v Women’s Link Worldwide (Petition E193 of 2021) [2023] KEELRC 358 (KLR)

Employment and Labour Relations Court
9 February 2023
AMANNA NGIBUINI MWAURE
1,668 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court has confirmed that a preliminary objection cannot be amended — you must either run it as filed or withdraw and refile it.

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Anna Ngibuini Mwaure, Judge, on 9 February 2023, determined a notice of motion dated 17 August 2022 in which the respondent sought to amend its notice of preliminary objection dated 15 February 2022 in an employment petition arising from consultancy agreements of 1 February 2017 and 1 February 2018. The preliminary objection invoked arbitration and forum-selection clauses conferring exclusive jurisdiction on the High Court. The respondent sought to add the provisions of the 2018 agreement, arguing the petitioner had introduced it after the objection was filed. The petitioner opposed, contending the objection rested on a contract inapplicable to her and that the proposed amendment raised matters that could be addressed in supplementary submissions. The court framed a single issue: whether the amendment should be allowed. It accepted the general principle, drawn from Order 8 rule 5 and cited authorities, that amendments should be freely allowed where made in good faith and without substantial injustice. However, it held that a preliminary objection is not a pleading but a pure point of law in the Mukhisa Biscuit sense, and cannot be amended; the only permissible supporting material is submissions and relevant authorities, rendering the petitioner's replying affidavit likewise irrelevant. The application was dismissed with costs in the cause, and the applicant was left free to proceed with the existing objection or withdraw and file it afresh.

Key legal issues

#
01

Whether a notice of preliminary objection can be amended

Holding

No. A preliminary objection is a pure point of law, not a pleading, and the law provides no mechanism for amending it; the applicant may proceed with it as filed or withdraw and file it afresh.

Reasoning

The court distinguished amendment of pleadings under Order 8 rule 5 from preliminary objections. While amendments are normally freely allowed in good faith, a preliminary objection is not a pleading but a point of law which, if successful, determines the suit. Since there is no pleading to amend, the amendment mechanism is inapplicable, and supporting material is confined to submissions and authorities. The application was therefore dismissed.

p. 3

Legal principles established

#
  • A preliminary objection raises a pure point of law and cannot be amended; the only acceptable documents in support of it are submissions and relevant authorities
  • Amendments to pleadings are to be freely allowed if made in good faith and without substantial injustice

Court orders

#
  1. 1.The application dated August 17, 2022 seeking to amend the notice of preliminary objection is dismissed
  2. 2.The replying affidavit filed by the petitioner is of no value in the preliminary objection
  3. 3.The applicant may either proceed with the preliminary objection as it is or withdraw it and file it afresh
  4. 4.Costs are in the cause

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013rules 3, 18 and 19
  • Civil Procedure RulesOrder 8 rule 5
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Andrew Wabuyele Biketi v Chinese Centre for the Promotion of Investment Development & Trade in Kenya Limited & 2 others
    [2015] eKLR
  • St. Patrick's Hill School Limited v Bank of Africa Kenya Limited
    [2018] eKLR
  • Peter Mungai v Joseph Ngara Kuria, Stephen Thuo Gitao & Leah Njeri Ndicho
    Misc Application No 8 of 2021
  • Mukhisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Article 23 of the Constitution (employment petition) and rules 3, 18 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muthiani v Women’s Link Worldwide (Petition E193 of 2021) [2023] KEELRC 358 (KLR)", Case Analysis (2023). Petition No E193 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/358/eng@2023-02-09

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