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ELRCPartially AllowedNot stated in the extract (Petition dated October 31, 2022; Chamber Summons dated March 1, 2023)· [2023] KEELRC 2808 (KLR)

Association of Muslim Lawyers & another v Governor, County Government of Nairobi & 2 others (Employment and Labour Relations Petition E184 of 2022) [2023] KEELRC 2808 (KLR)

Employment and Labour Relations Court of Kenya
8 November 2023
AMAnna Ngibuini Mwaure
1,452 words in judgment
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The bottom line

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A Kenyan employment court allowed petitioners to update their petition to reflect new events, ruling that pre-hearing amendments should be freely allowed unless they cause injustice.

What this practically means

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Executive summary

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The Petitioners/Applicants moved the Employment and Labour Relations Court by Chamber Summons dated March 1, 2023 seeking leave to amend their petition, which had challenged the vetting and appointment of nominees to positions of County Executive Committee members, County Secretary and senior advisors of the Governor appointed and sworn in on December 8, 2022 following a ruling of November 30, 2022. The Applicants argued the petition had become null and void and overtaken by events, and the amendments would clarify the current position without changing the character of the suit, relying on Order 8 rule 5(1) of the Civil Procedure Rules. The 1st and 3rd Respondents filed Grounds of Opposition contending the application was defective, misconceived and an abuse of process, and that the appointed CECs and county affairs would be prejudiced; the 2nd Respondent averred the application was a bad-faith afterthought. The court, applying Rule 13(6) of the ELRC (Procedure) Rules, Order 8 rule 3 of the Civil Procedure Rules, and the principles in Eastern Bakery v Castelino as adopted in Peter Ogecha v Kenyatta University, and Central Bank of Kenya Ltd v Trust Bank Ltd, found no new cause of action was introduced, no inordinate delay existed, and no prejudice would befall the respondents, since the issues raised would be addressed at the hearing of the petition. Leave to amend was granted, with the amended petition to be filed within 7 days and served. The matter was directed for mention before Justice Nduma Nderi or, in his absence, Principal Judge Justice Byram Ongaya on November 15, 2023, for allocation to another judge of the division in light of differing jurisprudence following the November 30, 2022 ruling. Costs were left in the cause in the meantime.

Key legal issues

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Whether leave to amend the petition should be granted

Holding

Leave granted; the amendment does not introduce a new cause of action but clarifies the current status of the matter after the nominees were vetted, appointed and sworn in, there is no inordinate delay, and the respondents will not be prejudiced

Reasoning

The court applied Rule 13(6) of the ELRC (Procedure) Rules and Order 8 of the Civil Procedure Rules, together with the principles in Eastern Bakery v Castelino and Central Bank of Kenya Ltd v Trust Bank Ltd. It found the amendment necessary to reflect that the petition had been overtaken by events, that it did not substitute the cause of action, was made without unreasonable delay, and that any grievance of the respondents could be addressed at the hearing of the petition.

p. 4

Legal principles established

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  • Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, which may be compensated by costs
  • After the close of pleadings, a party may only amend pleadings with leave of the Court on oral or formal application

Court orders

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  1. 1.Leave to amend the petition is granted
  2. 2.The Petitioner is ordered to file the amended petition within 7 days and to serve
  3. 3.The case to be mentioned before the Head of Judicial Review Division, Justice Nduma Nderi, or in his absence the Honourable Principal Judge, Justice Byram Ongaya, on 15/11/2023, to allocate the petition to another Judge of the division
  4. 4.Costs will be in the cause in the meantime

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rule 5(1)
  • Civil Procedure RulesOrder 8 rule 3 sub-rules (2) and (5)
  • Employment and Labour Relations Court (Procedure) RulesRule 13(6)

Cases cited (5)

  • Institute for Social Accountability & another vs Parliament of Kenya and 3 others
    2014 KLR
  • Peter Ogecha v Kenyatta University
    [2021] eKLR
  • Eastern Bakery v Castelino
    (1958) E.A. 461
  • Raleigh v Goschen
    [1898] 1 Ch. 73.81
  • Central bank of Kenya Ltd v Trust bank Ltd
    (2002) E.A. 365
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, Rule 13(6); Civil Procedure Rules, Order 8 rule 3 (2) and (5) and Order 8 rule 5(1)

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, "Association of Muslim Lawyers & another v Governor, County Government of Nairobi & 2 others (Employment and Labour Relations Petition E184 of 2022) [2023] KEELRC 2808 (KLR)", Case Analysis (2023). Not stated in the extract (Petition dated October 31, 2022; Chamber Summons dated March 1, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2808/eng@2023-11-08

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