[2016] KEELRC 570 (KLR)
The court found that the claimant was a registered member of the National Social Security Fund (NSSF) and that all statutory deductions had been duly remitted by the respondent. Section 35(5) and (6) of the Employment Act, 2007 expressly excludes employees who are members of NSSF from entitlement to service pay. The...
Source-derived case information.
- Citation
- [2016] KEELRC 570 (KLR)
- Parties
- Applicant: Godfrey Muchangi Associates Limited; Respondent: Abdul Mullick Associates Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 651 of 2013
- Procedural Posture
- Amendment Application / Ruling on Application to Amend Memorandum of Claim
- Outcome
- application dismissed
- Legal Topics
- Service Pay, Nssf Contributions, Amendment of Pleadings, Employment Act Section 35
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Muchangi Associates Limited
Applicant
Abdul Mullick Associates Limited
Respondent
Procedural Posture
Amendment Application / Ruling on Application to Amend Memorandum of Claim
Legal Issues
- 1 Whether the claimant should be granted leave to amend the memorandum of claim to include a claim for service pay.
- 2 Whether the intended amendment is contrary to section 35 of the Employment Act, 2007 due to NSSF membership.
- 3 Whether allowing the amendment would be prejudicial or contrary to law.
Ratio Decidendi
The court found that the claimant was a registered member of the National Social Security Fund (NSSF) and that all statutory deductions had been duly remitted by the respondent. Section 35(5) and (6) of the Employment Act, 2007 expressly excludes employees who are members of NSSF from entitlement to service pay. The intended amendment sought to introduce a claim for service pay, which is not available to the claimant under the law. Furthermore, the matter had already been substantially settled by consent, with only costs and interest remaining. Allowing the amendment would introduce a new claim contrary to statutory law and unnecessarily prolong the proceedings. The court therefore...
Court Disposition
application dismissed
Orders
- The application for leave to amend the memorandum of claim to include a claim for service pay is dismissed.
- Costs to follow the outcome.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 651 OF 2013
GODFREY MUCHANGI ASSOCIATES LIMITED …................... CLAIMANT
VERSUS
ABDUL MULLICK ASSOCIATES LIMITED ……................. RESPONDENT
RULING
1. Application dated 8th June 2016 and filed on 14th June 2016 seeks the court to grant the applicant leave to amend the memorandum of claim dated 8th April 2013 to include a claim for service pay.
2. This claim was partly settled out of court and a consent recorded on 30th May 2016. If the application is granted this would be the only outstanding claim.
3. The application is opposed by a replying affidavit filed on 4th July 2016. The nub of the opposition has two limbs as follows;
i. That the relief of service pay intended to be introduced is not available to the claimant by dint of section 35 of the Employment Act, No 11 of 2007 in that the claimant was a registered member of the National social Security Fund (NSSF) and the respondent remitted all NSSF deductions to the fund.
That the claim is not based on alleged rendundancy and therefore no service pay is payable.
ii. Only the issues of costs and interest are outstanding in this matter pursuant to the consent by the party which virtually settled this claim.
Determination
4. In HCC at Nairobi Civil Division Civil case no. 408 of 2005 Stephen Wachira Vs. Crown Rock Shield Limited and another the court held;
“The guiding principle in applications for amendment is that the court should liberally allow such applications so that the real question in controversy between the parties can be determined.”
5. The caveat is that the intended amendment should not be prejudicial to the other party in a manner not remediable by way of costs.
6. I will add another requirement, with regard to this matter, this is to say, the court ought not allow an amendment which on the face of it proposes to introduce a new matter or claim which is contrary to the law.
7. It is not in dispute in this case, that the claimant was registered with NSSF and the statutory dues were remitted by the employer on his behalf.
8. Section 35(5) of the Employment Act, No. 11 of 2007 provides for payment of service pay except in terms of section 35 (6) with regard to an employee who is a member of;
a) ……………………………….…
b) …………………………………
c) ………………………….……..
d) National Social Security Fund
9. The intended amendment clearly purposes to introduce a relief for payment of ‘service pay’ contrary to statutory law.
10. This matter having been partly settled by the parties in good faith safe for the issue of payment of costs and interest, the court does not consider it in the interest of justice and fair play to allow introduction of a fresh matter that is unlikely to succeed and has the effect of elongating conclusion of this case.
11. The court therefore does not exercise its discretion in favour of the claimant/applicant and the application is dismissed.
12. Costs to follow the outcome.
Dated and delivered at Nairobi this 7th day of October, 2016
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE