Ndihokubwayo v Alliance for a Green Revolution in Africa & another (Employment and Labour Relations Cause 277 of 2018) [2024] KEELRC 2492 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the proposed amendments introduced new causes of action barred by limitation
The amendments did not introduce new causes of action; they made the existing reliefs specific within the same employment relationship
The court examined the draft Amended Memorandum of Claim and found the amendments sought to make remedies more specific and to plead with specificity the entitlements originally claimed in general form, all arising within the same employment relationship. It found no bad faith or new causes of action. The limitation objection under section 90 of the Employment Act therefore did not defeat the application.
Whether the 6-year delay and the fact that hearing had not commenced affected the application
Delay alone was not fatal; since hearing had not started, no prejudice would be suffered by the Respondents who retain the right to respond
While noting the Claimant took six years to seek amendment, the court held that the hearing had not yet commenced, so the Respondents would suffer no prejudice. The overriding considerations were whether the amendments were necessary for determining the real questions in controversy and whether the delay caused compensable prejudice. The Respondents retain a corresponding right to amend under rule 14(6).
Whether the supporting affidavit sworn by Counsel was fatally defective
It was not defective; counsel may depone to matters of fact that are not contentious
The Respondents argued the affidavit of counsel contained contentious matters of fact. Relying on Kanyotta Holdings Ltd v Kenya Pipeline Company Ltd, the court held an advocate may depone on issues of fact provided they are not contentious, and found the matters deponed to were not contentious. The objection was rejected.
Legal principles established
#- Amendments may be allowed at any stage of the proceedings provided they are made in good faith and do not cause prejudice or injustice that cannot be compensated by costs
- Neither the length of the delay nor the length of proposed amendments is by itself sufficient ground to decline leave to amend
- An advocate may swear a supporting affidavit on matters of fact provided those matters are not contentious
Court orders
#- 1.Leave granted to the applicant to file and serve the amended statement of claim together with the supporting documents within 21 days of the ruling
- 2.The respondent at liberty to file and serve an amended response, if necessary, within a similar period after service
- 3.Costs shall be in the cause
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya 2010 and Rule 14(6) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndihokubwayo v Alliance for a Green Revolution in Africa & another (Employment and Labour Relations Cause 277 of 2018) [2024] KEELRC 2492 (KLR)", Case Analysis (2024). Application dated 12th March, 2024 in suit commenced by Memorandum of Claim dated 5th March, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2492/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.