Kenya Union of Commercial, Food and Allied Workers v New KCC Limited (Cause 408 of 2017) [2023] KEELRC 386 (KLR)

The court examined Section 22 of the Employment and Labour Relations Court Act and noted the Court of Appeal's holding that a union has locus standi to institute claims on behalf of members. Although the judge personally held that no person other than administrators, guardians of minors, or holders of power of attorney should sue in another's name, the Court of Appeal decision is binding and carries the day.

Applying Rule 2 of the ELRC (Procedure) Rules, the court held that the Grievant is directly involved and affected by the claim to which the court has taken cognizance, and the cause was filed for his benefit. Without the Applicant, the Claimant union would have no locus standi, so the cause would not stand in his absence.

Under Rule 14(6), after close of pleadings a party may amend with leave of court, and the other party has a corresponding right to amend. Since the hearing had not commenced, the Respondent could amend its response and raise limitation defences there, to be determined on merit. The claim as filed was in the wrong party's name and the amendment enables fair and just determination.

The Respondent argued the amendment would introduce a time-barred claim. The court held that the Respondent may raise all limitation issues in its amended response to the amended claim, where those issues would be heard and determined on merit; the amendment itself caused no prejudice compensable only by leaving the defence open.