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ELRCAllowedNot stated in judgment· [2023] KEELRC 2445 (KLR)

Kemboi v Majani Mingi Sisal Estate Limited (Cause E024 of 2021) [2023] KEELRC 2445 (KLR)

Employment and Labour Relations Court
12 October 2023
DNDAVID NDERITU
1,304 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 allowed a worker to amend his unfair termination claim, confirming amendments are permitted where they add facts, not new causes.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nakuru (David Nderitu, Judge) on the claimant's notice of motion dated July 29, 2022 seeking leave to amend his memorandum of claim filed on June 3, 2021, in a cause claiming damages for wrongful and unfair termination of employment, unpaid and illegally deducted salary, terminal benefits, and refund of Kshs.377,695/=. An earlier similar application dated May 30, 2022 had been withdrawn as incompetent because the supporting affidavit was not properly executed. The application, brought under section 3 of the ELRC Act, rules 4(1), 14(6) and 17(1) & (3) of the ELRC (Procedure) Rules and Article 159 of the Constitution, was opposed through a replying affidavit sworn by Allen Nengo, a senior human resource manager, and canvassed by written submissions. The court framed a single issue: whether leave to amend should be granted. It held that the proposed amendments related only to the body of the claim, not the reliefs, and involved only matters of fact subject to proof; hence they introduced neither a new nor a different cause of action, the true nature of a cause being understood from the reliefs sought. The main hearing had not commenced, so no prejudice or wasted costs would arise. Applying principles affirmed in Kassam v Bank of Baroda Ltd and Mose Nyambega Ondieki v Vice Chancellor, Maasai Mara University, the court allowed the amendment, granting corresponding leave to the respondent to amend its response and file further documents. Costs were ordered to be in the cause. Dated, signed and delivered virtually at Nakuru on October 12, 2023.

Key legal issues

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01

Whether the claimant should be granted leave to amend his memorandum of claim after closure of pleadings

Holding

Leave granted. The amendments related only to matters of fact and did not alter the reliefs or introduce a new cause of action; no prejudice to the respondent was demonstrated.

Reasoning

Rule 14(6) of the ELRC (Procedure) Rules permits amendment without leave before close of pleadings and with leave thereafter. The court's objective under section 3(1) of the ELRC Act is to facilitate just, expeditious, efficient and proportionate resolution of disputes. The proposed amendments touched the body of the claim, not the reliefs, hence no new or different cause of action was introduced. The main hearing had not commenced, so no prejudice or wasted costs would arise, and the respondent was granted a corresponding leave to amend its response.

p. 2

Legal principles established

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  • The granting or denying of leave to amend pleadings is a judicial discretion, not whimsical or capricious, to be exercised on sound reasons aimed at fairness and justice.
  • The true nature of a cause should be understood and conceived on the understanding of the reliefs sought.

Court orders

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  1. 1.Leave granted to the claimant to file and serve the amended memorandum of claim, a replica of the draft annexed to the application, within seven (7) days of the date of the ruling
  2. 2.Leave granted to the claimant to file a further list of documents containing the documents annexed to the application, if he deems it fit
  3. 3.The respondent granted a corresponding leave to amend its response to the memorandum of claim, if it so desires, within seven (7) days of service
  4. 4.The respondent granted leave to file any other documents it may wish to rely on in response
  5. 5.Costs shall be in the cause

Authorities

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Legislation

  • Employment & Labour Relations Court Actsection 3(1)
  • Employment & Labour Relations Court (Procedure) Rulesrule 4(1)
  • Employment & Labour Relations Court (Procedure) Rulesrule 14(6)
  • Employment & Labour Relations Court (Procedure) Rulesrule 17(1) & (3)
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Kassam v Bank of Baroda Ltd
    (2002) eKLR
  • Mose Nyambega Ondieki V Vice Chancellor, Maasai Mara University
    (2018) eKLR
Jurisdiction invoked
Section 3 of the Employment and Labour Relations Court Act; rules 4(1), 14(6), 17(1) & (3) of the Employment and Labour Relations Court (Procedure) Rules; Article 159 of the Constitution

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, "Kemboi v Majani Mingi Sisal Estate Limited (Cause E024 of 2021) [2023] KEELRC 2445 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2445/eng@2023-10-12

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