Bosire & 4 others v Nyaribo & 8 others (Petition 010 of 2022) [2023] KEELRC 1140 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Court should allow amendment of the Petition and joinder of additional parties
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
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.
The test for allowing amendment of pleadings
Rule 18 of the Mutunga Rules confers discretion to allow amendment at any stage, provided the amendment is not frivolous and occasions no prejudice
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.
Whether the Court had jurisdiction over the fresh causes of action sought to be introduced
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
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.
Legal principles established
#- 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
#- 1.The application dated 2 August 2021 is dismissed with costs
- 2.The Court will hereinafter issue directions on the hearing of the Petition on the merits
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.