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ELRCDismissedNot stated in the judgment text provided· [2023] KEELRC 1909 (KLR)

Ouma v Migori County Assembly Service Board & another (Petition E032 of 2022) [2023] KEELRC 1909 (KLR)

Employment and Labour Relations Court
27 July 2023
CBC. N. BAARI
1,057 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 a petitioner rewrite his case into an entirely new claim, ruling such changes require filing a fresh suit.

What this practically means

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Executive summary

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The Petitioner, Evans Ogutu Ouma, moved the court by Notice of Motion dated 14th March 2023 under Sections 3A and 100 of the Civil Procedure Act, Order 8 Rules 3 and 5, Order 51 Rule 1 of the Civil Procedure Rules and Article 159 of the Constitution, seeking leave to amend his petition, that the draft amended petition be deemed duly filed upon payment of fees, and costs in the cause. He argued that changed circumstances, inadvertent defects, erroneous figures and typographical errors necessitated amendment, and that no prejudice would befall the Respondents. The Respondents, through a Replying Affidavit of Vincensia Awino Kionge, opposed, contending the application came late in the day after submissions and after the Petitioner's advocate recused himself, that it was an afterthought, and that it sought to strike out five Respondents who had fully participated awaiting judgment. The sole issue was whether leave to amend should issue. Applying Rule 13(6) of the ELRC (Procedure) Rules and the principles in Joseph Ochieng v First National Bank of Chicago, the court held that although delay alone was not fatal since amendments may be allowed at any stage, the draft amended petition was a totally new suit with new paragraphs and substantially altered reliefs, changing the action into one of a different character more conveniently the subject of a fresh action. The motion was dismissed with no orders on costs.

Key legal issues

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01

Whether leave to amend the petition should be granted after close of pleadings and after submissions

Holding

Application for amendment dismissed; the proposed amendment would create a substantially different action fit for a fresh suit, not an amendment

Reasoning

The court applied the principles in Joseph Ochieng & 2 others v First National Bank of Chicago. Although delay alone would not defeat the application since amendment may be allowed at any stage, a close look at the draft amended petition revealed several new paragraphs and substantially changed reliefs, amounting to a totally new suit. Further, the issues raised could only properly be tried under a normal claim rather than a constitutional petition.

p. 3

Legal principles established

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  • Delay alone is not sufficient ground to decline an application for leave to amend pleadings, given the court's discretion to allow amendment at any stage
  • An amendment that introduces a new case or changes the action into one of a substantially different character which could more conveniently be the subject of a fresh action should not be allowed

Court orders

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  1. 1.The Applicant/Petitioner's Notice of Motion dated 14th March, 2023 is dismissed
  2. 2.No orders on costs

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 100
  • Civil Procedure RulesOrder 8 Rules 3 and 5; Order 51 Rule 1
  • Employment and Labour Relations Court (Procedure) RulesRule 13(6)
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Joseph Ochieng & 2 others v First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • Tildesley v Harper
    (1878) 10 Ch. D 296
Jurisdiction invoked
Sections 3A and 100 of the Civil Procedure Act, Order 8 Rules 3 and 5, Order 51 Rule 1 of the Civil Procedure Rules, Article 159 of the Constitution; Rule 13(6) of the Employment and Labour Relations Court (Procedure) Rules

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, "Ouma v Migori County Assembly Service Board & another (Petition E032 of 2022) [2023] KEELRC 1909 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1909/eng@2023-07-27

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