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ELRCAllowedPetition No. E003 of 2020 (as transferred from the High Court at Nakuru to the Employment and Labour Relations Court)· [2023] KEELRC 2654 (KLR)

Orina v Egerton University & another (Petition E021 of 2021) [2023] KEELRC 2654 (KLR)

Employment and Labour Relations Court
26 October 2023
2,048 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Nakuru on a notice of motion dated 4th October 2022 in which the petitioner sought leave to amend his petition. The petition was originally filed in the High Court at Nakuru as Petition No. E003 of 2020, challenging the legality of the 1st Respondent's Charter and Statutes for want of gazettement under the Universities Act and the Statutory Instruments Act, and seeking declarations that investigations and reports of a Corruption Prevention Committee and an Ad hoc Senate Subcommittee concerning the petitioner were unlawful and violated his constitutional rights. By a ruling dated 24th June 2021, Matheka J. found the High Court lacked jurisdiction over the subject matter and ordered transfer to the ELRC. Following the transfer, the petitioner sought to amend the petition to invoke labour rights under Article 41 of the Constitution, the reliefs otherwise remaining intact. The respondents opposed, arguing the application was defective for failure to annex the draft amended petition and that the amendments introduced a new cause of action. Applying the factors in Kassam v Bank of Baroda, Nderitu J. held the application was brought at the earliest opportunity before directions or hearing, that no new cause of action, prejudice or circumvention of limitation was demonstrated, and that the failure to annex the draft was curable. Leave to amend was granted, with timelines for filing the amended petition and any amended response, and costs of the application were awarded to the petitioner.

Key legal issues

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01

Whether the petitioner should be granted leave to amend the petition following transfer of the matter from the High Court to the ELRC

Holding

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.

Reasoning

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.

p. 5
02

Whether failure to annex the draft amended petition to the notice of motion rendered the application incurably defective

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.The petitioner to file and serve the amended petition within seven (7) days of the ruling
  3. 3.The Respondent at liberty to file and serve an amended response, if it so deems, within 7 days of service
  4. 4.Costs of the application in the petition awarded to the petitioner

Authorities

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Legislation

  • Universities ActSections 21 and 23
  • Statutory Instruments ActSection 22
  • Employment and Labour Relations Court ActSection 3
  • Employment and Labour Relations Court (Procedure) RulesRules 4(1), 14(6), 17(1) & (3); also Rule 16 cited in submissions
  • Constitution of Kenya, 2010Articles 10, 28, 29(d), 41, 43(1), 47, 50(1)

Cases cited (3)

  • Amalgamated Union of Kenya Metal Workers v Shankar Electronics Limited
    (2022) eKLR
  • Mursal Guleid & 2 Others v Daniel Kioko Musau
    (2020) eKLR
  • Kassam v Bank of Baroda
    (2002) eKLR
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

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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, "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.