Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Co. Ltd & 6 others

(ii) That upon grant of prayer 1 above, the draft amended claim memorandum dated 26th January 2026 be deemed duly led and served upon payment of the prerequisite court fees. (iii) That costs be in the course (sic). 2. The application is expressed to be founded on Rule 34 of the Employment and Labour Relations Court(Procedure) Rules, 2024, Section 10 of the Employment Act, Section 1A, 2A & 3A of the Civil Procedure Act, Order 8, Rule 5 of the Civil Procedure Rules; Articles 47 & 159 of the Constitution and the ILO Conventions. It is based on the grounds on the face of it. 3. The application is supported with the adavit sworn by Francis Bushuru Wangara, the General Secretary of the Applicant, on 26th January 2026, with several annexures thereto. 4. In response to the application, the 3rd Interested Party led a replying adavit sworn by Erick Khawale, the director, on 16th February 2026, with several annexures thereto. 5. On 17th March 2026 when the matter came up in court for directions, it was directed that parties willing to respond to the application le their responses and written submissions. 6. In response to the application, the 3rd Interested Party led a replying adavit sworn by Erick Khawale, the director, on 16th February 2026, with several annexures thereto. Mr Jeremiah Akhonya, the Applicant’s representative, led written submissions dated 26th March 2026. II. The Evidence 7. As explained in the supporting adavit, the Applicant is seeking leave of the court to further amend its amended memorandum of claim by redesignating the 1st, 2nd and 3rd, Interested Parties as the 2nd, 3rd and 4th Respondents. 8. It was deposed that the proposed respondents participated in the conciliation process and proceedings this far and that substantive reliefs are sought against them, making their joinder as respondents necessary for the eective adjudication and determination of the dispute. The Applicant further maintains that the application is timely and will not prejudice any of the parties. 9. It was further deposed that the proposed Respondents were parties in Kakamega ELRC Cause No. E20 of 2020 wherein they were ordered to make deductions and remittances of union dues. It was deposed that the 1st Respondent used outsourcing arrangements to circumvent the Recognition Agreement and the Collective Bargaining Agreement (CBA) by engaging employees on inferior terms, thereby discriminating against outsourced employees and denying them negotiated benets. 10. In its replying adavit the 3rd Interested Party opposed the application. It is deposed that the contractual relationship between the 3rd Interested Party and the Respondent was terminated and that the 3rdInterested Party no longer provides outsourced labour services to the Respondent. It was argued that the intended amendments have been overtaken by events as there no longer exists any contractual relationship capable of grounding the claims against the 3rd Interested Party. 11. It was further deposed that any obligations which may have arisen from the 3rd Interested Party’s participation in the conciliation process ceased upon termination of the outsourcing contract. It is maintained that the Applicant has failed to demonstrate the role that the 3rd Interested Party would play in the proceedings if joined as a respondent or establish any basis for the substantive relief sought against it. On that account, the Court was urged to dismiss the application with costs. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2655/eng@2026-09-28 2

page 2 of 4

III. Submissions 12. The Applicant’s representative submitted globally in support of the application, asserting that the proposed amendments are necessary to ensure that the proper parties are before the Court and facilitate the eective and conclusive determination of the substantive issues in dispute. It is submitted that the amendment will enable the Court to issue appropriate orders directly against the parties against whom a substantive relief is sought. 13. It was further submitted that amendment of pleadings is a discretionary remedy that is generally permitted with leave of the Court under Rule 34 of the Employment and Labour Relations Court (Procedure) Rules, 2024. It was contended that there is nothing improper in seeking to amend pleadings where the purpose is to ensure that the litigation proceeds on the basis of the facts and that all necessary parties are properly before the Court. 14. The Applicant’s representative cited the decision in Moses Nyambega Ondieki v Vice Chancellor Maasai Mara University & 3 Others [2018] eKLR, wherein the Court held that the power to allow amendments is discretionary and may be exercised at any stage of the proceedings, provided that the amendment is made in good faith and does not occasion prejudice to the opposing party that may not be compensated by way of costs. 15. It was further submitted that the application was made in good faith and that sucient reasons have been disclosed in the supporting adavit. Consequently, it was contended that the three interested parties ought to be joined as respondents so that they may answer to the claims against them for the Court to determine the issues raised in cause as between all the parties with nality. 16. Finally, it was submitted that amendments to pleadings should generally be freely allowed, and that the present application is timely, made in good faith, and will occasion no prejudice to either the Respondent or the Interested Parties. 17. The Respondents did not le written submissions. IV. Analysis & Determination 18. The court has carefully read and considered the application, the adavit in support, the replying adavit, and the submissions by the Applicant’s representative. The following issues are for determination a) Whether the Applicant has established sucient grounds to deserve leave to amend the memorandum of claim redesignating the 1st, 2nd & 3rd Interested Parties as respondents. b) Costs? V. Amendment 19. Rule 34 of Employment and Labour Relations Court (Procedure) Rules, 2024 (the Rules) provides that – ‘A party may amend pleadings before service or before the close of pleadings: Provided that after the close of pleadings, the party may only amend pleadings with the leave of the Court on oral or formal application, and, the other party shall have a corresponding right to amend its pleadings’. 20. The Court of Appeal in Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] KECA 367 (KLR) observed as follows – ‘The settled rule with regard to amendment of pleadings has been concisely stated in Vol.2, 6th Ed. at P.2245, of the AIR Commentaries on the Indian Civil Procedure Code by Chittaley and Rao, in which the learned authors state: "that a party is allowed to make such amendments as https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2655/eng@2026-09-28 3

page 3 of 4

may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is aected and that the amendment can be allowed without injustice to the other side’. 21. The court went to state that – ‘Hence the guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs (see, Beoco Ltd v. Alfa Laval Co. Ltd [1994]4 ALL ER. 464).’ 22. On its part, the Applicant asserts that the redesignation of the 1st, 2nd and 3rd Interested Parties is necessary for the court to determine all the issues raised in the claim. The 3rd Interested Party, argued that no issue(s) are raised in the claim as for the court to redesignate it as a Respondent. 23. Guided by the principles in Central Kenya Ltd v Trust Bank Ltd & 5 others (supra), this court opines that no prejudice has been demonstrated by the 3rd Interested party or indeed the other two and none will be occasioned if the amendment was allowed, as the court shall have the opportunity to hear the claim and determine liability as between all the parties. 24. Moreover, the court notes that no new or inconsistent cause of action has been introduced as to visit or occasion an injustice upon the intended respondents. 25. Consequently, the court nds that the application is merited and the same is allowed. VI. Orders 26. The court thus orders as follows – (i) The application dated 26th January 2026 is hereby allowed. (ii) The Applicant shall le the intended further amended memorandum of claim and serve the same within 14 days of this ruling. (iii) All the Respondents including the new respondents shall have 21 days upon service to le an amended response or defence. (iv) Costs shall be in the cause. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 28TH DAY OF SEPTEMBER 2026. .................................... DAVID NDERITU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2655/eng@2026-09-28 4

page 4 of 4