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ELRCDismissedNot stated in judgment· [2023] KEELRC 2794 (KLR)

Kenya Shipping Clearing & Warehouses Workers Union v Maya Limited (Employment and Labour Relations Cause 898 of 2018) [2023] KEELRC 2794 (KLR)

Employment and Labour Relations Court
3 November 2023
AMAnna Ngibuini Mwaure
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to let a claimant add new reliefs years after filing, because time-barred claims cannot be rescued by amendment.

What this practically means

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Executive summary

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The Claimant filed a Notice of Motion dated 6th April 2023 seeking leave to amend the Memorandum of Claim dated 7th June 2018 to introduce reliefs including a declaration that the grievant's dismissal was unfair, one month's salary in lieu of notice (Kshs 25,455), gratuity of Kshs 229,095 and compensation for unfair termination of Kshs 305,460 under section 49 of the Employment Act. The Respondent opposed through a Notice of Preliminary Objection dated 26th April 2023, contending the reliefs sought to be introduced were time barred and that the application was defective and brought under the wrong provisions of the law. In a ruling delivered virtually in Nairobi on 3rd November 2023, Mwaure J framed the primary issue as whether the application to amend was time barred, depriving the court of jurisdiction. The court applied the Coffee Board of Kenya v Thika Coffee Mills principles, including that time-barred amendments should not be allowed, and noted the narrow Order 8 rule 3(2) exceptions (correction of party names, capacity, or new cause of action arising from the same facts) did not cover the introduction of totally new reliefs. The court found inordinate delay, observing the application was an afterthought made only after failed settlement talks and after the court indicated the suit had been overtaken by events upon lapse of the reinstatement period. Citing Beatrice Kahai Adagala v Postal Corporation of Kenya, the court held its hands were tied and allowed the preliminary objection, directing parties to bear their respective costs of the application.

Key legal issues

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01

Whether leave to amend a memorandum of claim after expiry of the limitation period can be granted

Holding

The application to amend is time barred; the court lacks jurisdiction to entertain it and the preliminary objection succeeds

Reasoning

The suit was filed on 7th June 2018 and the claimant only sought to amend in April 2023 after the court observed the suit had been overtaken by events following lapse of time for reinstatement. The proposed amendments introduce all the section 49 Employment Act reliefs afresh. Order 8 rule 3(2) permits post-limitation amendments only in narrow circumstances (party name, capacity, or new cause of action on same facts), none of which apply to totally new reliefs. There was also inordinate delay amounting to an afterthought.

p. 3

Legal principles established

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  • Amendment of a claim or relief barred by time should not be allowed
  • Post-limitation amendments may only be allowed under Order 8 rule 3(2) where they correct a party's name, alter capacity, or add a cause of action arising out of the same facts; introduction of totally new reliefs does not qualify

Court orders

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  1. 1.The preliminary objection dated 26th April 2023 is merited and is granted
  2. 2.Parties to bear the respective costs of the application

Authorities

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Legislation

  • Labour Relations Actsection 30
  • Employment and Labour Relations Court Actsection 12
  • Civil Procedure RulesOrder 8 rule 3
  • Employment Actsection 90
  • Employment and Labour Relations Court (Procedure) RulesRule 14(6)
  • Employment Actsection 49
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (2)

  • Coffee Board of Kenya v Thika Coffee Mills Limited & 2 Others
    (2014) eKLR
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    (2015) eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; section 30 of the Labour Relations Act, 2007 (invoked by the Claimant for the application)

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, "Kenya Shipping Clearing & Warehouses Workers Union v Maya Limited (Employment and Labour Relations Cause 898 of 2018) [2023] KEELRC 2794 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2794/eng@2023-11-03

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