[2022] KEELRC 13066 (KLR)

Clerk, Kisii County Assembly v Kerubo & 7 others (Appeal E040 of 2021) [2022] KEELRC 13066 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEELRC 13066 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Appeal E040 of 2021

CN Baari, J

November 3, 2022

Between

Clerk, Kisii County Assembly

Appellant

and

Rages Kerubo

1st Respondent

Vincent Mogoncho Onyango

2nd Respondent

Victor Okindo

3rd Respondent

Derrick Masega

4th Respondent

Isaiah Matoke

5th Respondent

Arnold Onkobe

6th Respondent

Director Human Resources Management, Kisii County

7th Respondent

County Assembly of Kisii

8th Respondent

Ruling

1. Before court are two applications, one dated March 30, 2022 and another dated May 30, 2022. The applications are brought pursuant to rule 14 (6) of the Employment and Labour Relations Court (Procedure) Rulesand order 8 rule 3, 5, 7 of the Civil Procedure Rules. The applicants in the two applications seek leave to amend the memorandum of appeal filed herein out of time.

2. The applications are supported by grounds on the face and the affidavits sworn by James O Nyaoga on March 30, 2022 and May 30, 2022. The crux of the applications is that the appellant/applicant and the 7th, 8th and 9th respondents herein are bound by the orders appealed against and ought therefore to have been appellants in this suit and not respondents.

3. It is the appellant/applicant’s assertion that owing to their shared position and stand in the dispute both before the lower court, and this court, it is proper, fair and convenient for ease of representation that the 7th ,8th and 9th respondents take the position of appellants along with the current appellant.

4. The applicant contends that in order for the 7th ,8th and 9th respondents to be made appellants, it is necessary that the memorandum of appeal herein be amended.

5. The 1st to the 6th respondents opposed the applications vide replying affidavits sworn by Rages Kerubo, on April 6, 2022 and another sworn by the same Rages Kerubo on June 21, 2022.

6. The 1st-6th respondents’ position is that they instituted suit against the appellant and the 7th, 8th and 9th respondents in the lower court, but that only the appellant herein entered appearance and participated in the suit, whose orders are the subject of this appeal.

7. It is the 1st- 6th respondents’ position that the 7th, 8th and 9th respondents cannot now alleges to be aggrieved by orders resulting from a suit they did not participate in, so as to lodge an appeal against those orders.

8. It is the 1st – 6th respondents’ contention that the applications are bereft of merit, is vexatious and an abuse of the court process. It is the respondents further position that they stand to be greatly prejudiced in the event the applications are allowed.

9. Submissions were filed for the parties, and which have been duly considered.

Determination 10. I have considered the two applications, the grounds and affidavits in their support, the replying affidavits in opposition and the parties’ written submissions. The issue for my determination is whether the applications satisfy the threshold for exercise of the court’s discretion to allow the amendments sought.

11. Rule 14 (6) of the Employment and Labour Relations Court (Procedure) Rules, states: -“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.”

12. The power of the court to allow amendment after close of pleadings is discretionary, and which discretion is informed by whether or not the amendment(s) is necessary for the just determination of the issues in dispute between the parties.

13. In Central Kenya Ltd v Trust Bank Ltd & 5others(2000) eKLR, the court had this to say on amendment of pleadings:“The overriding consideration in applications for such leave is whether the amendments are necessary for the just determination of controversy between the parties. Likewise, mere delay is not a ground for declining to grant leave. It must be such delay is likely to prejudice the opposte party beyond monetary compensation in costs.”

14. The 1st-6th respondents’ contend that for reason that the 7th, 8th and 9th respondents did not participate in the trial before the lower court, they cannot now be heard to want to appeal against the resultant orders of the lower court. My question in this respect is what then makes them respondents or parties to this suit at all?

15. It is not disputed that the orders of the lower court now impugned, and any other orders from the instant appeal, can only be implemented jointly by the appellant/applicant and the 7th, 8th and 9th respondents.

16. This court in its ruling rendered on February 17, 2022, had questioned the wisdom of joining the 7th and 8th respondents as respondents and not appellants, being the persons who were required to implement the decisions of the lower court and by extension subsequent orders of this court.

17. I am convinced that the leave for amendment is necessary to enable this court fully determine the issues between the parties, and for easier implementation of the orders of the court.

18. I find the applications merited and are hereby allowed as prayed.

19. The appellant/applicant is allowed leave to amend the memorandum of appeal herein, and not later than 14 days of this order.

20. It is so ordered.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 3RDDAY OF NOVEMBER, 2022. CHRISTINE N. BAARIJUDGE.Appearance:Mr. Onsongo Present for the Appellant/ApplicantMr. Ochoki present for the 1st – 6th RespondentsMs. Mumo h/b for Ms. Nyamwaya for the 9th RespondentMs. Christine Omollo-C/A