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ELRCDismissedPetition filed 14 January 2021 (at Kericho), ruling on Notice of Motion dated 2 August 2021· [2023] KEELRC 1140 (KLR)

Bosire & 4 others v Nyaribo & 8 others (Petition 010 of 2022) [2023] KEELRC 1140 (KLR)

Employment and Labour Relations Court
11 May 2023
1,558 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 refused to let former Kisii officials amend their petition to relitigate settled issues, ruling their remedy was an appeal, not amendment.

What this practically means

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Executive summary

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Five former County Executive Committee members of Kisii County petitioned on 14 January 2021, contending that their removal from office upon the 1st Respondent assuming the Governorship after the demise of the appointing Governor amounted to constructive dismissal and was illegal. By a Motion dated 2 August 2021, the Petitioners sought leave to amend the Petition to add the Council of Governors and the Senate as parties, to introduce issues on the interpretation of Article 179(7) of the Constitution affecting all 47 counties, to have the amended petition certified as raising substantial questions of law and referred to the Chief Justice for empanelment of a bench of at least three judges under Article 165(4), and to arrest a ruling scheduled for 21 September 2021 on the Respondents' application. The Respondents opposed, arguing the amendments were a complete departure from the pleaded issues, that the Court had already interpreted Article 179(7) in its Ruling of 18 February 2021, that the parties to be added were strangers to the employment contracts, and that allowing the amendments would amount to the Court sitting on appeal over its own decision. The Petitioners did not file submissions as directed. The Court, restating the settled law that amendments may be allowed at any stage where not frivolous and free of prejudice, held that it had already made findings of fact and law on Article 179(7) at an interlocutory stage and could not reopen them; the proper remedy was an appeal. The application was dismissed with costs, with directions on the merits to follow.

Key legal issues

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01

Whether the Court should allow amendment of the Petition and joinder of additional parties

Holding

The Court declined to exercise its discretion in favour of the Petitioners and dismissed the application with costs, holding that the amendments sought to reopen issues already determined in the Ruling of 18 February 2021

Reasoning

The Court had, at an interlocutory stage and in the Ruling of 18 February 2021, interpreted and applied Article 179(7) of the Constitution and found that the CEC members' term ceased upon the vacancy in the Governor's office. Allowing the amendments to reinterpret Article 179(7) afresh would amount to the Court sitting on appeal over its own findings, and the Respondents would be prejudiced. The remedy of the Petitioners lay in an appeal, not amendment.

p. 4
02

The test for allowing amendment of pleadings

Holding

Rule 18 of the Mutunga Rules confers discretion to allow amendment at any stage, provided the amendment is not frivolous and occasions no prejudice

Reasoning

The Court relied on Haki Africa, Mombasa Cement and Geyser International to restate the settled principles: amendments ought to be freely allowed where necessary for determining the real issues in controversy or avoiding multiplicity of suits, provided there is no undue delay, no vested interest or accrued right is affected, and no injustice or prejudice is occasioned to the other side.

p. 3
03

Whether the Court had jurisdiction over the fresh causes of action sought to be introduced

Holding

The Respondents argued, relying on the Court of Appeal decision in NSSF Board of Trustees v Kenya Tea Growers Association, that there was no employer/employee relationship supporting jurisdiction over the fresh causes of action; the Court did not find it necessary to determine this given the dismissal of the amendment application

Reasoning

The Respondents contended in further submissions that the intended amendments introduced new matters constituting a complete departure from the issues before the Court, that the parties to be added were not privy to the Petitioners' contracts or the alleged constructive dismissal, and that the Court should follow the Court of Appeal's holding and down its pen. The Court disposed of the application on the prejudice and self-appeal grounds instead.

p. 3

Legal principles established

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  • A court should not reopen findings of fact and law it made earlier in the same proceedings; the proper course is an appeal
  • Amendment of a petition once filed can only be done with the permission of the court, granted where the amendment is not frivolous and occasions no prejudice

Court orders

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  1. 1.The application dated 2 August 2021 is dismissed with costs
  2. 2.The Court will hereinafter issue directions on the hearing of the Petition on the merits

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(4)
  • Constitution of Kenya, 2010Article 179(7)
  • Constitution of Kenya, 2010Articles 27, 41, 47, 48 and 50
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 18; Rule 5

Cases cited (4)

  • Humanity Action Knowledge Integrity in Africa Trust (Haki Africa) & 19 others v Attorney General & 3 Ors; Kenya National Commission on Human Rights (KNHCR) & 2 Ors (Interested Parties)
    (2020) eKLR
  • Mombasa Cement Limited v Speaker of the National Assembly & 2 ors
    (2016) eKLR
  • Geyser International Assets Limited v Attorney General & 3 Ors
    (2019) eKLR
  • National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 Ors
    Civil Appeal No. 656 of 2022
Jurisdiction invoked
Article 165(4) of the Constitution (raised in the motion for certification and empanelment); Employment and Labour Relations Court jurisdiction over the employment dispute

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, "Bosire & 4 others v Nyaribo & 8 others (Petition 010 of 2022) [2023] KEELRC 1140 (KLR)", Case Analysis (2023). Petition filed 14 January 2021 (at Kericho), ruling on Notice of Motion dated 2 August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1140/eng@2023-05-11

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