Hesbon v Omaera Pharmaceuticals Limited (Cause 2176 of 2016) [2025] KEELRC 11 (KLR)
The bottom line
#The Employment Court refused to restart an old house allowance claim, ruling judges of equal rank cannot overrule each other and time-barred claims cannot be added by amendment.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should order a de novo hearing of the claim
The prayer for a de novo hearing was denied. The claimant's case had been heard and closed on 28th October 2021 before Justice Ocharo Kebira, who ruled on 9th February 2023 that the hearing resume from where it left. The present court, being of equal status, cannot overrule that direction.
The court perused the record and found the claimant had testified, been cross-examined and re-examined, and his case closed before Justice Ocharo Kebira. A consent judgment followed, was set aside by the trial judge who directed the hearing to continue from where it left. As a court of record of equal and concurrent jurisdiction, the present court is bound by that ruling and the matter must proceed to the Respondent's case.
Whether leave should be granted to amend paragraph 3(c) of the claim to claim five years instead of four years of unpaid house allowance
Leave to amend was refused on two grounds: the amendment sought an additional year of house allowance falling outside the three-year limitation period under section 89 of the Employment Act, and the application was marked by inordinate delay of approximately seven years, contrary to Article 159(2)(b) of the Constitution.
Although amendments may be sought at any stage and are generally allowed in good faith, the proposed amendment would introduce a time-barred claim, depriving the respondent of a limitation defence. Further, the claim was filed in 2016, the claimant's case closed in 2021, and the application came seven years later, constituting inordinate delay inconsistent with the constitutional principle that justice shall not be delayed.
Legal principles established
#- A court of concurrent jurisdiction has no authority to overrule a ruling of a judge of equal status; where a trial judge has directed that a hearing resume from where it left off, a differently constituted bench of the same court must give effect to that direction
- Leave to amend pleadings will not be granted where the amendment would introduce a claim barred by limitation, depriving the opposite party of the right to rely on a limitation defence
- Failure to annex a draft amended plaint is not fatal to an application for leave to amend where the nature of the proposed amendment is clearly disclosed
- Employment claims must be instituted within three years of the act, neglect or default complained of under section 89 of the Employment Act
Court orders
#- 1.The prayer for a de novo hearing is denied; the matter to proceed to hearing of the Respondent's case from where the proceedings were left
- 2.The application is dismissed with costs to the Respondent
- 3.The parties to take a date for the hearing of the Respondent's case on a priority basis
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules 2024, Rule 34; Article 159 of the Constitution; section 89 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hesbon v Omaera Pharmaceuticals Limited (Cause 2176 of 2016) [2025] KEELRC 11 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/11/eng@2025-01-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.