[2015] KEELRC 1378 (KLR)
The court found that amendments to pleadings can be allowed at any time during proceedings as long as the amendment does not prejudice the other party. The matter had not yet been heard, and the amendment would not fundamentally alter the nature of the defence or claim in a way that would prevent the affected party...
Source-derived case information.
- Citation
- [2015] KEELRC 1378 (KLR)
- Parties
- Claimant: George Omondi Munyala; Respondent: Kenya Power and Lighting Company
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1315 of 2011
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Order Refusing Amendment
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Prejudice to Parties, Adjournment History
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Omondi Munyala
Claimant
Kenya Power and Lighting Company
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Order Refusing Amendment
Legal Issues
- 1 Whether the respondent should be granted leave to amend the memorandum of response after discovery of new information.
- 2 Whether allowing the amendment would prejudice the claimant.
- 3 Whether the history of adjournments justifies refusal of the amendment.
Ratio Decidendi
The court found that amendments to pleadings can be allowed at any time during proceedings as long as the amendment does not prejudice the other party. The matter had not yet been heard, and the amendment would not fundamentally alter the nature of the defence or claim in a way that would prevent the affected party from responding appropriately. The court also clarified that adjournments had been occasioned by both parties and the court itself, not solely by the respondent. Therefore, the application to set aside the previous order refusing amendment was allowed, permitting the respondent to file and serve an amended memorandum of response within 14 days, with a corresponding right for...
Court Disposition
application allowed
Orders
- The application dated 26th January, 2015 is allowed to the extent that the amended memorandum of response be filed and served within 14 days of this order.
- The claimant is granted a corresponding right to file an amended memorandum of claim if necessary.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NUMBER 1315 OF 2011
GEORGE OMONDI MUNYALA…………………………………. CLAIMANT
VERSUS
KENYA POWER AND LIGHTING COMPANY……………...RESPONDENT
RULING
1. On 16th December, 2014 I refused an application to amend the memorandum of response and directed that this matter proceeds on the basis of the pleadings on file.
2. This order triggered the present application seeking to set aside the said orders. The application is brought on the grounds that:-
(a) via an email of 1st December, 2014, the respondent informed its counsel that it had discovered from its records that the claimant owed the respondent the respondent Kshs.368,489/= at the time he was dismissed from employment.
(b) that this was a new and crucial information in respect of the matter that was not within the knowledge of the respondent at the time of preparing and filing the memorandum of defence.
3. Counsel for the claimant Ms. Oyombe submitted that on 16th December, 2014 when the matter came up for hearing, counsel for the claimant despite receiving the respondent’s counsel’s letter dated 4th December, 2014 seeking the claimant’s counsel’s indulgence to adjourn the matter in order to seek leave to amend the memorandum of claim, opposed the adjournment stating that the matter has always been adjourned at the instance of the respondent, a statement Ms. Oyombe submitted was false. According to counsel, the respondent had sought adjournment only twice.
4. Concerning leave to amend the memorandum of claim, counsel submitted that the court has power to grant leave to enable the respondent bring forth all the issues in controversy. Counsel further submitted that the claimant would not be prejudiced if the amendment sought was allowed. According to counsel an amendment can be allowed at any time in the proceedings.
5. Mr. Kariuki for the claimant opposed the application stating that the claimant filed the claim on 11th August, 2011 and served it on the respondent who filed their response on 2nd August, 2012 on the day the matter was slated for hearing. Counsel further observed that the respondent’s advocate wrote to him concerning the adjournment and intention to apply for leave to amend, only a few days to 16th December, 2014 when again the matter was coming for hearing.
6. I have reviewed the history of this matter as minuted by the various Judges in whose hand the file has passed and noted that the matter has been adjourned for reasons ranging from those requested for by the respondent to some occasioned by the Court itself. It is therefore not true that the respondents is the one who has always asked for adjournment.
7. Regarding leave to amend, it is indeed true as submitted by Ms. Oyombe that an amendment can be allowed at any time in the proceedings provided the amendment would not cause the other party any prejudice.
8. In order to bring all the issues in controversy before the Court, a party should be allowed to amend their pleadings at any time. This matter has never been heard. It is a fresh matter hence it cannot be said that the amendment sought could change the nature of the defence or the claim in a way that the party affected by the amendment cannot make a corresponding amendment to reorganize his claim or defence in response to the amendment.
9. The Court will therefore allow the application dated 26th January, 2015 to the extent that the amended memorandum of response be filed and served within 14 days of this order with a corresponding right to the claimant to file an amended memorandum of claim if necessary.
10. It is so ordered.
Dated at Nairobi this 18th day of February 2015
Abuodha J. N.
Judge
Delivered this 18th day of February 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge