Orina v Egerton University & another (Petition E021 of 2021) [2023] KEELRC 2654 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court allowed a petitioner to amend his constitutional petition after transfer from the High Court, awarding costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner should be granted leave to amend the petition following transfer of the matter from the High Court to the ELRC
Leave granted. The application was made at the earliest opportunity before directions or hearing; the amendments invoke Article 41 but the reliefs remain largely intact, so no new cause of action or prejudice was demonstrated.
The court considered the factors in Kassam v Bank of Baroda: timing of the application, explanation for the omission, prejudice to the opponent, mischief such as new causes of action or circumvention of limitation, good faith and delay. Since the petition had been transferred but not yet set down for hearing or directions, the application was reasonably brought at the earliest available opportunity. The jurisdiction of the High Court and ELRC differs in subject matter and remedies, and the invocation of Article 41 with otherwise intact reliefs showed no new cause of action. No prejudice to the respondents was detected, and they retained liberty to amend their own pleadings.
Whether failure to annex the draft amended petition to the notice of motion rendered the application incurably defective
No. The omission was serious but not fatal, and was cured when the draft was subsequently annexed to a supplementary affidavit filed with the court's leave.
The respondents argued that failure to annex the draft amended petition to the application at the time of filing rendered it incurably defective. The court acknowledged the omission as serious but held it was cured by the subsequent annexation of the draft to a supplementary affidavit, filed with the leave of the court. The proposed amendments were therefore properly before the court for consideration on their merits.
Legal principles established
#- Failure to annex a draft amended petition to a notice of motion for leave to amend is a serious omission but not necessarily fatal where the draft is subsequently annexed to a supplementary affidavit.
- The court's discretion to allow amendment of pleadings is wide but not absolute; it must be weighed against factors such as timeliness, prejudice, introduction of a new cause of action, limitation and abuse of process.
Court orders
#- 1.Leave granted to the petitioner to amend the petition strictly in the replica of the draft amended petition annexed to the supplementary affidavit
- 2.The petitioner to file and serve the amended petition within seven (7) days of the ruling
- 3.The Respondent at liberty to file and serve an amended response, if it so deems, within 7 days of service
- 4.Costs of the application in the petition awarded to the petitioner
- On appeal from
- High Court at Nakuru
- Petition No. E003 of 2020
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (section 3) and Employment and Labour Relations Court (Procedure) Rules, 2016 (rules 4(1), 14(6), 17(1) & (3)), following transfer of the petition from the High Court pursuant to Article 162(2) of the Constitution (matter concerning labour rights under Article 41)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orina v Egerton University & another (Petition E021 of 2021) [2023] KEELRC 2654 (KLR)", Case Analysis (2023). Petition No. E003 of 2020 (as transferred from the High Court at Nakuru to the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2654/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.