Bundi v Teachers Service Commission (Petition E278 of 2025) [2026] KEELRC 2130 (KLR) (17 July 2026) (Ruling)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI PETITION NO. E278 OF 2025 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION SAMMY MAINA BUNDI..…………………………………………………………………..PETITIONER/APPLICANT -VERSUS- THE TEACHERS SERVICE COMMISSION. …………………………………………………...…….. .RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. While the judgment in the petition was pending for delivery, the petitioner filed in court application by way of Notice of Motion dated 19th June 2026 which was brought under Article 23(3 c, (e) of the Constitution, Section 12 & 20(1) of the Employment and Labour Relations Court Act Cap 8E, Rule 34 of the Employment and Labour Relations Court (Procedure) Rules, Rule 3 & 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules,2013 seeking for the following orders – 2. Spent 3. THAT the Applicant be granted leave of Court to Amend the Petition and the Amended Petition dated 18.06.2026 annexed in the Supporting Affidavit of Sammy Maina Bundi filed herewith be deemed as duly and properly filed upon payment of the requisite Court filing fees. 4. THAT the Honourable Court be pleased to grant leave to the Applicant to Amend the Petition dated 24.12.2025 to include ONLY a prayer for award of damages in Compensation as a result of infringement and violation of the Petitioner's Constitutional rights and also that Sammy Maina Bundi, the Petitioner retains his current position of Employment as Deputy Principal at Oloolaiser Secondary School unless otherwise lawfully transferred. 5. THAT the costs of this Application be provided for. Grounds of the application 1. THAT the Applicant is currently serving as the Deputy Principal Oloolaiser Secondary School a position he has held since 05.06.2025. 2. On 16.12.2025 barely six(6) months after his transfer to Oloolaiser Secondary School, the Petitioner was unlawfully transferred to Kiboko Secondary School. 3. THE Petitioner was not given any reasons for transfer and neither was his internal Appeal considered and heard by the Respondent. 4. THAT the Petitioner's rights to freedom of association, right to exercise political rights, right to fair labour practices, right to vie and vote, right to fair hearing and fair administrative process were violated. 5. THAT this Honourable Court urgently intervened on 31.12.2025 and issued Conservatory Orders staying the Petitioner's transfer from Oloolaiser Secondary School to Kiboko Secondary School. 6. THE Petitioner humbly prays that the Court Orders that he be retained at Oloolaiser Secondary School unless otherwise lawfully transferred again. 6. THAT the Petitioner's rights have been infringed and violated by the Respondent and the Petitioner is entitled to compensation in damages hence the prayer for leave to amend the Petition to include the prayer for damages. 7. THE law provides a remedy for every wrong. 8. THAT the amendment if allowed would not prejudice the Respondent as it will ensure that the Court does not issue Orders that are merely academic. 9. THE amendments sought to be introduced are purely legal in nature and they do not change the facts or alter the nature and character of the cause of action in any way and do not require filing of further evidentiary documents in response. 10. THAT the Court has power to grant leave and allow an amendment any time before Judgement and upon application by a party. 11. THAT to refuse the proposed amendment would be tantamount to denying the Petitioner a relief that is available to him in law. 12. THAT it is in the best interests of justice that the Orders sought be granted. 13. The applicant supported the application vide his affidavit sworn on the 19th June 2026 and annexed the draft amended petition. 14. The respondent, in opposition to the application, filed grounds of opposition dated 3rd July 2025 as follows- 1. The Application is an abuse of the Court process and is brought at the eleventh hour. The Petition has been fully heard, all pleadings and submissions have been filed, and the matter is already scheduled for judgment on 29th July 2026. 2. The Applicant has offered no plausible explanation as to why the proposed amendments were not sought earlier despite having had ample opportunity to do so throughout the pendency of the proceedings. 3. The Application is calculated to delay the delivery of judgment. The timing of the Application, coming after the close of pleadings and submissions and shortly before the scheduled judgment date, demonstrates a clear intention to derail the conclusion of the matter and prolong the subsistence of the interim orders currently in force. 4. The proposed amendments are not necessary for the determination of the real issues in controversy. The Petition has already been fully canvassed on the basis of the existing pleadings and the Court is seized of all material necessary to render its judgment. 5. ⁠5. In any event, if upon consideration of the pleadings and evidence the Court is of the view that any consequential or ancillary relief is warranted, the Court retains inherent jurisdiction and wide constitutional powers to grant appropriate reliefs, including orders not specifically pleaded, where the circumstances of the case justify such intervention. Consequently, the proposed amendments are unnecessary and add no value to the just determination of the Petition. 6. The Court's discretion to allow amendments must be exercised judiciously and not in a manner that occasions prejudice, delays the administration of justice, or undermines the principle of finality in litigation. 7. The interests of justice dictate allowing the matter to proceed to judgment as scheduled rather than reopening proceedings that have already been concluded. 8. Should the Honourable Court be inclined to allow the Application, it is our humble prayer that the interim orders granted on 10th March, 2026 be vacated. 15. The court heard the application on the 6th July 2026. The petitioner was represented by Mr Atonga, while the respondent was represented by Ms. Ngere. The advocates relied on their pleadings as highlighted above. 16. It is trite that the amendment of pleadings can be allowed anytime before the judgment. Rule 34 of the Employment and Labour Relations Court (Procedural) Rules, 2024 provides for amendment of pleadings as follows- ‘34. Amendment of pleadings 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.’’ 1. The grant of leave to amend pleadings after close of pleadings is a matter of unfettered discretion of this court, which should be exercised in a way that does not prejudice the other party. I find that, though the court has unfettered discretion to allow amendment of pleadings, the same should not be allowed where the apparent intent is to delay justice, especially in a case akin to arresting the judgment and in a manner to deny defence. The court agreed with the respondent that the remedy of compensation in constitutional petitions flows automatically on finding a violation of the rights. Consequently, it follows that the introduction of a prayer for compensation is not a sound reason to amend the petition. During the hearing, the court established that the respondent was not opposed to allowing an amendment to the prayer for compensation only. Though the prayer can be granted by the court suo moto on finding violation, out of abundance of caution, since that amendment to add prayer for compensation is not contested, I grant leave of 3 days for the petitioner to amend the petition for compensation only. I decline to grant leave to amend the petition to introduce a prayer for the petitioner to be retained in his current position of employment as a deputy at Oloolaiser Secondary School, unless otherwise lawfully transferred. The prayer would invite a response, thus reopening the case. That is not acceptable as it amounts to unfair delay of delivery of justice. The petitioner had adequate time to present his case before the closure of pleadings. The court upheld the principle of equality of arms, which is a legal principle that ensures all parties in a trial have equal opportunities to present their case without being placed at a disadvantage relative to their opponent. 2. In the upshot, the court allowed the application, limited to the court granting leave to the petitioner to amend the petition to introduce a prayer for Compensation only within 3 days of the ruling. 3. Costs of the application to the respondent in the cause. 4. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 17TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner- Mr. Atonga Respondent -Ms. Ngere