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ELRCPartially AllowedNot stated in judgment

Style Industries Limited v Kasumba (Cause 1086 of 2018) [2023] KEELRC 2143 (KLR)

Employment and Labour Relations Court
22 September 2023
AJABUODHA JN
719 words in judgment
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The bottom line

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A Kenyan employment court allowed factual amendments to a defence but rejected a counterclaim about events after employment ended, because it was outside the court's jurisdiction and three years late.

What this practically means

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Executive summary

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By a Motion dated February 20, 2023, the respondent/applicant sought leave to amend his memorandum of response to include a counterclaim in a suit before the Employment and Labour Relations Court at Nairobi. The claimant objected, contending that the proposed counterclaim was statute-barred and outside the Court's jurisdiction. The Court considered the established principles on amendment of pleadings from Central Kenya Limited v Trust Bank Limited and Eastern Bakery v Castelino, which favour free allowance of amendments provided no new or inconsistent cause of action is introduced and no injustice is caused to the other side. Examining the draft amended statement of response, the Court found the proposed factual amendments did not introduce any new cause of action or defence and allowed them. However, the proposed counterclaim alleged that after his termination in 2017 the respondent was employed by Di-Lorenzo as head of production, that the claimant's allegedly malicious suit caused his new employer displeasure and led to his declaration redundant, and sought compensation for mental depression and lost talent opportunities. The Court held these matters arose after the employer-employee relationship had ceased, and even if actionable, fell outside the Court's jurisdiction. The respondent himself admitted the cause of action exceeded the three-year limitation period under section 90 of the Employment Act, which the Court reaffirmed is mandatory and incapable of extension. The application was accordingly partially successful: the amendments to the response were allowed, the counterclaim was disallowed for lack of jurisdiction and limitation, and costs of the application were ordered to abide the outcome of the main suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent/applicant should be granted leave to amend his memorandum of response
  2. 2.Whether the proposed counterclaim is statute-barred under section 90 of the Employment Act
  3. 3.Whether the counterclaim falls within the jurisdiction of the Court

Key legal issues

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01

Whether the proposed amendments to the statement of response should be allowed

Holding

The factual amendments were allowed as they did not introduce any new cause of action or defence

Reasoning

The Court applied the principles in Central Kenya Limited v Trust Bank Limited and Eastern Bakery v Castelino that amendments should be freely allowed where they do not introduce a new or inconsistent cause of action, affect vested rights, or cause injustice. On perusing the draft amended response, the Court found the amendments were mere factual representations of events and introduced no new cause of action or defence, so they were permitted.

p. 2
02

Whether the proposed counterclaim was within the Court's jurisdiction and limitation period

Holding

The counterclaim was disallowed for lack of jurisdiction and being time-barred under section 90 of the Employment Act

Reasoning

The counterclaim arose from events occurring after the employment relationship had ceased, namely alleged malicious prosecution leading to redundancy with a new employer. Even if actionable, such matters fall outside the ELRC's jurisdiction. Further, the respondent admitted the cause of action exceeded the three-year period in section 90 of the Employment Act, which is mandatory and cannot be extended.

p. 2

Legal principles established

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  • Section 90 of the Employment Act is couched in mandatory terms and the limitation period therein cannot be extended once lapsed
  • Amendments to pleadings should be freely allowed provided they introduce no new or inconsistent cause of action and cause no injustice to the other side

Court orders

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  1. 1.The amendments sought in the draft statement of response are allowed
  2. 2.The proposed counterclaim is disallowed on grounds of lack of jurisdiction and limitation of action under section 90 of the Employment Act
  3. 3.Costs of the application shall abide the outcome of the main suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AJ
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, including section 90 limitation

Relief refused

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Leave to include a counterclaim in the amended memorandum of response

The counterclaim concerned matters arising after termination of employment, outside the Court's jurisdiction, and was admitted to be beyond the three-year limitation period under section 90 of the Employment Act

p. 2

Costs

Costs of the application shall abide the outcome of the main suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion that application for amendment is partially successful to the extent that the amendments sought in the draft statement of response are hereby allowed.
p. 2Partial allowance of amendment application
The proposed counterclaim is hereby disallowed on grounds of lack of jurisdiction and limitation of action as stipulated under section 90 of the Employment Act.
p. 2Refusal of counterclaim - jurisdiction and limitation
section 90 of the Employment Act is couched in mandatory terms hence whenever the period stipulated therein for bringing actions founded on the Act or contract of employment has lapsed, it cannot be extended.
p. 2Mandatory nature of section 90 limitation
Cost of the application shall abide the outcome of the main suit.
p. 2Costs order

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, "Style Industries Limited v Kasumba (Cause 1086 of 2018) [2023] KEELRC 2143 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2143/eng@2023-09-22

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