[2015] KEELRC 311 (KLR)
The court held that although the suit was initially filed against the wrong party, this was a technical error that could be cured by amendment. The claimant's motion to amend the memorandum of claim to substitute the proper party demonstrated acknowledgment of the procedural defect. The court emphasized that justice...
Source-derived case information.
- Citation
- [2015] KEELRC 311 (KLR)
- Parties
- Claimant: Janet Pisoi Kikayaya; Respondent: Local Authorities Provident Fund; Respondent: David Koross
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1336 of 2014
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection and Application to Amend Claim
- Outcome
- Preliminary objection disallowed; motion to amend claim allowed with costs to respondent.
- Judges
- DI Wasike
- Legal Topics
- Misjoinder of Parties, Amendment of Pleadings, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Janet Pisoi Kikayaya
Claimant
Local Authorities Provident Fund
Respondent
David Koross
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection and Application to Amend Claim
Legal Issues
- 1 Whether the Local Authorities Provident Fund can be sued in its own name under section 5(8) of the Local Authorities Provident Fund Act.
- 2 Whether the misjoinder of the respondent is curable by amendment of the memorandum of claim.
- 3 Whether the preliminary objection should be upheld or dismissed.
Ratio Decidendi
The court held that although the suit was initially filed against the wrong party, this was a technical error that could be cured by amendment. The claimant's motion to amend the memorandum of claim to substitute the proper party demonstrated acknowledgment of the procedural defect. The court emphasized that justice should be administered without undue regard to procedural technicalities, and that misjoinder is curable by amendment unless it causes irreparable prejudice. Since the amendment would not occasion undue prejudice to the respondent that could not be compensated by costs, the preliminary objection was disallowed and the amendment was permitted.
Court Disposition
Preliminary objection disallowed; motion to amend claim allowed with costs to respondent.
Orders
- The preliminary objection is disallowed.
- The motion dated 21st July, 2015 seeking amendment of the memorandum of claim is allowed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1336 OF 2014
JANET PISOI KIKAYAYA………………………………………....................................…CLAIMANT
VERSUS
LOCAL AUTHORITIES PROVIDENT FUND………........................................…1ST RESPONDENT
DAVID KOROSS………………………………….................................………..2ND RESPONDENT
RULING
1. The respondents in this suit raised as preliminary the objection that by virtue of section 5 (8) of the Local Authorities Provident Fund Act, it was clear that the respondent named was not capable of being sued in the manner sought and pleaded by the claimant since the Act has clearly established a board which is the only entity bestowed with power to sue or be sued. Hence any purported suit against the fund in its own name must fail.
2. The claimants have since filed a Motion dated 21st July, 2015 seeking to amend the memorandum of claim to align the same with the provisions of section 5(8) of the Local Authorities Provident Fund Act. This is an acknowledgement by the claimant that the respondent was right in raising the objection.
3. Under article 159(2) (d) of the Constitution, in exercising judicial authority the Court is required among other things to administer justice with undue regard to procedural technicalities. A misjoinder is curable by amending the claim even if such amendment implies introducing a whole new party. The Court’s attitude must always be more towards preserving a suit than kill it since a dispute heard and resolved on merit offers a more lasting solution than one decided on technicality.
4. This is not to say that a Court cannot in an appropriate case, dispose of a suit on technicality. Technicality the handmaiden of administration of justice especially in dealing with frivolous and vexatious claims merely brought up to misuse the Court process. The Court however before invoking the discretion to dispose of a suit on technicality, be persuaded that the omission, or misstep complained of cannot be cured by an amended and that the amendments if allowed would, occasion the party affected prejudice. If the omission or misstep is a mere inconvenience capable of being assuaged by an award of costs, the Court would be reluctant to dispose of the suit on a technical point and award costs instead.
5. The respondent as currently cited in the suit and the Board are creatures of the Act. The Board is the juridical persona of the Fund an amendment to correct this technical anomaly cannot be said to be capable of occasioning the respondent undue prejudice incapable of compensation by an award of costs.
6. In the circumstances the Court disallows the preliminary objection and orders that the Motion dated 21st July, 2015 seeking an amendment of the memorandum of claim be allowed with costs to the respondent.
7. It is so ordered.
Dated at Nairobi this 30th day of October 2015
Abuodha J. N.
Judge
Delivered this 30th day of October 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge