https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2420

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC APPEAL NO. E314 OF 2025 JOHN HAMISI OMUHAKA….……………………………………………………………………………APPELLANT * VS – JOHN MWANGI MURAGURI……….………………………..……………............................…RESPONDENT (Being an Appeal from the Ruling and Order of the Hon. L. Ambasi (CM) delivered on 12th August 2025 in Milimani MCELRC No. 1490 of 2022) CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Appellant herein, dissatisfied with the Ruling and Order of the Hon. L. Ambasi (CM) delivered on 12th August 2025 in Milimani MCELRC No. 1490 of 2022 between the parties, filed a Memorandum of Appeal dated 11th September 2025, seeking the following orders: 2. This appeal be allowed and the Ruling and Orders of the Lower Court be set aside. 3. The Appellant’s Application in the Lower Court be allowed. 4. The costs of this Appeal and the Application in the Lower Court be borne by the Respondent herein. GROUNDS OF THE APPEAL 1. The Honourable Magistrate erred in law and fact in failing to be guided by the provisions of Section 57(a) of the Interpretation and General Provisions Act in her computation of time for purposes of limitation of actions which would have brought the Appellant’s intended amendments within the limitation period. 2. The Honourable Magistrate erred in law and fact in failing to properly interpret Order 8 Rule 3 of the Civil Procedure Rules 2010 which on a proper interpretation is to the effect that the relevant date for limitation of actions in an amendment application is the date when the Application for amendment was made or filed to Court. 3. The Honourable Magistrate erred in law and fact in holding that the Appellant intended to introduce new causes of action via its Amendments while what the Appellant had done was to simply particularize what he had already pleaded. 1. The Honourable Magistrate erred in law and fact in disallowing the intended amendments even assuming they were time barred (which they were not) despite case law and legal provisions firmly providing that amendments could be allowed even after limitation periods had lapsed. 2. The Honourable Magistrate erred in law and fact in holding that the Appellant could not enjoin the intended 2nd Respondent to the suit despite overwhelming case law and legal provisions supporting such joinder. 3. The Honourable Magistrate erred in law and fact in prematurely addressing the joinder of the intended 2nd Respondent while the 2nd Respondent is not a party to these proceedings and the intended 2nd Respondent had not raised the defence of limitation itself. 4. The Honourable Magistrate erred in law and fact in failing to fathom or alternatively in assessing the Appellants Application, Exhibits, Submissions and Authorities superficially thereby denying the Appellant the right to a fair hearing and reaching wrong conclusions. 5. The Honourable Magistrate erred in law and fact in failing to make any analysis as to why she disagreed with the Appellant’s arguments but was only swayed by the Respondent’s arguments and therefore took a biased approach in the matter. 6. The Honourable Magistrate erred in law and fact in dismissing the Appellant’s Application and awarding costs of the Application to the Respondent. BACKGROUND TO THE APPEAL 1. The Claimant/Appellant filed suit vide a statement of claim dated 30th August 2022 seeking the following reliefs against the Respondent: a) A declaration that his dismissal was unfair, wrongful and unlawful. b) Claimant’s employment records as per Section 74(1) (d), (e), (f), (g), (h) and (k). c) Service pay on account of NSSF non remission d) Underpayments of salary e) House allowance f) Gratuity for security guards @ 18 pays for every year worked. g) Rest days h) Public holiday pay i) Pay in lieu of annual leave j) Paternity leave pay k) Pay in lieu of notice for one month l) Overtime m) Compensation for unlawful dismissal being 12 months pay in compensation. n) Costs of the suit. o) Interest at 14% on special damages from the date of filing suit until payment in full. p) Interest at 14% on compensation and costs from the date of Judgement. q) Certificate of Service. r) Any further or other relief the Court may deem fit to grant. (statement of claim and accompanying documents on pages 6-12 of ROA dated 2nd December 2025). 1. The Claimant/Appellant also filed a notice of motion application dated 31st August 2024, seeking the following orders: 1. This Honourable Court be pleased to grant the Claimant/Applicant leave to amend its Statement of Claim dated 30th August 2022 as per the draft annexed to the Supporting Affidavit hereto. 2. Costs of this Application be in the cause. 2. In support of the notice of motion application, the Claimant/Appellant filed a supporting affidavit sworn on 31st August 2024 (pages 23-35 of ROA). 3. The Respondent responded to the application by filing a replying affidavit sworn on 27th May 2025 (pages 36-38 of ROA). 4. To counter the Respondent’s averments, the Claimant/Appellant filed a further affidavit sworn on 28th May 2025 (pages 39-47 of ROA). 5. The court issued directions that the application be disposed of by way of written submissions and the parties complied (pages 48-105 of ROA). 6. The Trial Magistrate Court delivered its ruling on the 12th of August 2025, dismissing the application dated 31st August 2024 for lacking in merit (ruling and order at pages 103-106 of ROA). DETERMINATION 1. The appeal was canvassed through written submissions. Both parties filed. Issues for determination 1. The Appellant identified the following issues for determination in his submissions dated 2nd April 2026:- * 1. Whether the learned Magistrate erred in law in computing the limitation period. For purposes of amendment of pleadings. 2. Whether the learned Magistrate misapprehended the pleadings and wrongly concluded that the intended amendments introduced new causes of action. 3. Whether the learned Magistrate misapplied the principles governing amendment of pleadings. 4. Whether the learned Magistrate erred in refusing joinder of a necessary party. 5. Whether the learned Magistrate prematurely determined the limitation defence before joinder of the proposed 2nd Respondent. 6. Whether the learned Magistrate improperly exercised judicial discretion. 2. Conversely, the Respondent submitted generally on the appeal in his submissions dated 25th May 2026. 3. The court discerned the issue for determination in the appeal was as follows- 1. Whether the trial court erred in dismissing the application for amendment of the suit. 4. The grounds of appeal were as follows- 5. The Honourable Magistrate erred in law and fact in failing to be guided by the provisions of Section 57(a) of the Interpretation and General Provisions Act in her computation of time for purposes of limitation of actions which would have brought the Appellant’s intended amendments within the limitation period. 6. The Honourable Magistrate erred in law and fact in failing to properly interpret Order 8 Rule 3 of the Civil Procedure Rules 2010 which on a proper interpretation is to the effect that the relevant date for limitation of actions in an amendment application is the date when the Application for amendment was made or filed to Court. 7. The Honourable Magistrate erred in law and fact in holding that the Appellant intended to introduce new causes of action via its Amendments while what the Appellant had done was to simply particularize what he had already pleaded. 1. The Honourable Magistrate erred in law and fact in disallowing the intended amendments even assuming they were time barred (which they were not) despite case law and legal provisions firmly providing that amendments could be allowed even after limitation periods had lapsed. 2. The Honourable Magistrate erred in law and fact in holding that the Appellant could not enjoin the intended 2nd Respondent to the suit despite overwhelming case law and legal provisions supporting such joinder. 3. The Honourable Magistrate erred in law and fact in prematurely addressing the joinder of the intended 2nd Respondent while the 2nd Respondent is not a party to these proceedings and the intended 2nd Respondent had not raised the defence of limitation itself. 4. The Honourable Magistrate erred in law and fact in failing to fathom or alternatively in assessing the Appellants Application, Exhibits, Submissions and Authorities superficially thereby denying the Appellant the right to a fair hearing and reaching wrong conclusions. 5. The Honourable Magistrate erred in law and fact in failing to make any analysis as to why she disagreed with the Appellant’s arguments but was only swayed by the Respondent’s arguments and therefore took a biased approach in the matter. 6. The Honourable Magistrate erred in law and fact in dismissing the Appellant’s Application and awarding costs of the Application to the Respondent. The appellant’s submissions 1. ISSUE NO. 1: miscomputation of the limitation period - The Trial Court failed to apply at all Section 57 of the Interpretation and General Provisions Act, which governs computation of time. Section 57 of The Interpretation and General Provisions Act provides as follows: “In computing time for the purposes of a written law, unless the contrary intention appears— (a) a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done; (b) if the last day of the period is Sunday or a public holiday or all official nonworking days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day; (c) where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day; Going by Section 57(a) and noting that the Appellant was terminated on 31st August 2021 which fact is not in dispute, time started running from 1 st September 2021 which is the day after termination. Further, going by Section 57 (b) and 57(c), the limitation period was actually 2nd September 2024 (Monday) because 1st September 2024 was a Sunday which is an excluded day. This clearly demonstrates that the Respondent’s argument on limitation was flawed on account of the technical and fine legal points as in the Sections of the law cited above. The amendment application was filed on 31 August 2024 (see the receipt at page 22 of the Record). This position was clearly articulated in the Further Affidavit at pages 39 to 47 of the Record and in the Applicant’s Submissions at pages 50 to 51 of the Record. The Trial Court did not give due weight to this legal position. Even assuming the amendments were time barred, they could still be allowed as demonstrated below. Order 8 Rule 3 of the Civil Procedure Rules provides as follows; “ 1). Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. (2)Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do. (3)An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued. (4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued. (5) An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment. 17. The learned Magistrate however failed to address this argument in the ruling, thereby misdirecting herself in law. 2. ISSUE NO 2 AND 3: the amendments did not introduce new causes of action -The learned Magistrate erred in concluding that the proposed amendments introduced new causes of action. 19. The original Statement of Claim already pleaded and prayed for the reliefs sought to be particularized as can be seen in the Statement of Claim at paragraph 8 – overtime, paragraph 12 – underpayments, paragraph 15 – service pay, paragraph 16 – paternity leave, paragraph 17- annual leave pay, paragraph 18 – public holiday pay, paragraph 19 – rest days (see pages 6 to 8 of the Record). He also prayed for these items (see page 8 of the Record). It was therefore totally erroneous for the Trial Court to hold that the amendments were introducing new causes of action. But even if they did, the law still permits it.The draft amended claim merely particularized those claims by providing detailed computations based on the applicable wage orders. These particulars appear in the draft Amended Statement of Claim at pages 28 to 33 of the Record. The intended amendment therefore did not introduce new causes of action but merely particularized them. The amendment sought by the Appellant was necessary to ensure the dispute is determined on its full merits. In fact as things stand, the Appellant’s suit cannot proceed at all because there are no particulars of the reliefs he prays for. The Trial Court in effect drove the Appellant from the seal of justice by denying him leave to amend his Statement of Claim. 3. ISSUE NO 4: joinder of the second respondent - The Appellant sought to join Traca Management Services Limited, the entity responsible for managing the premises where the Appellant worked and issuing job instructions. This can be seen in the draft amended claim at pages 27 and 33 of the Record. 26. Under Order 1 Rule 10(2) of the Civil Procedure Rules, the court may add any person whose presence is necessary for the effectual and complete adjudication of the issues in dispute. In addition, Section 20 of the Employment and Labour Relations Court Act grants the Court broad procedural powers to: a) join any person as a party at any stage of proceedings; and b) determine disputes without undue regard to procedural technicalities. The joinder of the estate management company was therefore necessary to determine the identity of the true employer. The intended addition of the intended 2nd Respondent was triggered by the Witness Statement of the current Respondent dated 6th December 2022 and the director of intended 2nd Respondent dated 8th January 2023 where they state as follows (see pages 17 and 18 of the Record): (a) Respondent’s Statement “My name is John Mwangi Muranguri and I am named as the Respondent in this case. I state that I have no knowledge of the Claimant’s employment by myself as he claims. Although I own rental premises off Naivasha road, same have always been managed by estate agents who are in charge of hiring, supervising and firing all employees under their charge………..” (b) Intended 2 nd Respondent’s Statement“My name is Amos Mwangi Njuguna of I.D No. 10880817 and P.O Box 10730- 00400 Niarobi and I am the Managing Director of Traca Management Services Limited We engaged the Claimant with effect from 3/12/2018 at Family Villa ………...” Further, in its documents, the Respondent annexes a letter identifying the intended 2nd Respondent Traca Management Consultants Limited as its agent (see page 20 of the Record). A principal and an agent are inextricably linked. Further, it is clear that the Respondent and the Intended 2nd Respondent are acting in concert to defeat justice. Also, from the Appellant’s Further Affidavit, a Rent Assessment report filed in Rent Restriction Assessment Case No. 6 of 2026 (Exhibit A in the Appellant’s Further Affidavit) (see pages 42-46 of the Record) shows clearly that Family Villa Flats where the Appellant was working is owned by the Respondent. Further, the Intended 2nd Respondent’s letter filed with the Respondent’s documents (also annexed as Exhibit B in the Appellant’s Further Affidavit) (see page 47 of the Record) names the Intended 2nd Respondent as the Respondent’s agent. The mischief by the Respondent and Intended 2nd Respondent is clear as day. There is no party who controls when a Ruling on an Application will be delivered. Therefore the date to be looked at for purposes of limitation for an added party is the date on which the Application is “MADE” as per the law (i.e the date of filing). We reiterate that Order 8 Rule 3 speaks of the date of filing the application (in this case 31st August 2024) and not the day of Ruling (which is unknown before filing such as application and can be even after the limitation period). As long as the Appellant applied for joinder of the 2nd Respondent within time, the same is permissible irrespective of when the Ruling will be delivered. Order 8 Rule 3 says: “(2)Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.” The Rule does not say “where the “Ruling” allowing joinder is made after the limitation period has expired”. This is a fine distinction that brings matters into perspective. The plea of limitation in this Application is therefore totally misplaced because the application was “made/filed” before the limitation deadline. The Respondent was served with the Application on 31st August 2024 (see page 35 of the Record) but waited until May 2025 to file its Replying Affidavit (see pages 36 to 38 of the Record) so as to plead limitation. Such mischief should not be countenanced. Under agency law, the agent binds the principal. Further in employment law, the definition of an employer is wide as can be seen in the various definitions in the labour statutes. 4. In LUCY NYANDIA MWANGI V MATHENGE AND MUCHEMI ADVOCATES [2013] KEELRC 355 (KLR), RIKA J held as follows:“13. An employer is defined both by statutory law and the common law. The Employment Act 2007, the Labour Relations Act 2007 and the Industrial Court Act 2011 define an employer to include, “any person, public body, firm, corporation or company, who or which has entered into a contract of service to employ any individual and includes the agent, the foreman, manager or factor of such person, public body, firm of corporation.’’ This makes is possible for other persons acting for the principal employer to be held to be employers themselves. Managers, agents and factors in businesses can be employers. An Associate or Manager in a Law Firm can be an employer. An Associate or Manager who exercises decisional control; defines the work to be done by the employees; controls the tools of trade of the business; and who perhaps even pays the employees their salaries, can be deemed to be an employer. The law deliberately broadens the definition of an employer so that the employee is not technically barred from accessing redress for employment wrongs, from employers who hide behind intricate legal and business formations.” We also submit that even if limitation of actions is applicable to this matter (it is not), amendment and introduction of a party after the limitation period is in any event permissible with leave which is what has been sought. We rely on the following authorities: In JOSEPH MWANIKI MUCHIRA V GODFREY MUCHANGI [2018] EKLR the High Court allowed an application to enjoin a party to the suit after the limitation period has passed based on the provisions of Order 8 rule 3 above. It held thus; “The court exercises discretion to allow a party to amend his plead in order to meet the ends of justice. Order 8 rule (3) (1) & 2 of the Civil Procedure Rules provides: Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. (2) Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do. The Respondent had been granted an order by the High Court for a retrial after he discovered that circumstances had changed. As held by the trial Magistrate found it was fair and just to allow the amendment to bring in the appellant and the other defendants so that the suit is not rendered nugatory. A retrial without joining in the appellant and the other defendants would be an exercise in futility as the respondent would and end up with orders he could not execute against persons who were not party to the suit. It would also render the order for retrial to be in vain. I find that the ground that the claim against the appellant was time barred must fail. The application to join the appellant and leave granted to amend the plaint were filed within time. 38. Similarly, in WILSON OGOT OWERA T/A OGOT & ASSOCIATES v AMOS KASASIRA & 6 others [2011] Eklr the Court held; “The preliminary objection was opposed by the plaintiff’s learned counsel Ms. Umara. Learned counsel relied on Order 1 Rule 14 of the Civil Procedure Rules 2010. That rule provides as follows: “14. Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by chamber summons or at the trial of the suit in a summary manner.” The plaintiff’s learned counsel argued that what the plaintiff seeks to do by its amendment is authorized by that rule. Further she argued that the plaintiff’s proposed amended plaint is not a new suit and it is not therefore caught by the law of limitation under cap 22. She submitted that the cause of action in the proposed amended plaint has not changed. Although the plaintiff’s counsel said that she was relying on certain cases, I could not trace them in the court file. The issue for determination by this court is whether the plaintiff’s proposed amendment to the plaint is time barred. Order 8 Rule 3 of the Civil Procedure Rules 2010 provides that a court may allow an amendment to pleadings at any stage of the proceedings and on such terms as to cost or otherwise as may be just. An amendment can be allowed any time before judgment is entered. But rule 3 (2) of Order 8 is probably the most relevant rule in this matter. It is therefore necessary to reproduce it in this ruling as follows: “(2) Where an application to the court for leave to make an amendment such as is mentioned in sub rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub rule if it thinks just so to do.” It is clear from that rule that there is no basis for the preliminary objection raised by the defendants. That rule provides that an amendment can be allowed even in instances where such amendment would admit a claim which is beyond the limitation period. The preliminary objection is without merit and is overruled and dismissed with costs.” The law has recently been restated in the case of SICHUAN HUASHI ENTERPRISES CORP. LIMITED V MICHEAL MISIKO MUHINDI [2019] KEHC 2521 (KLR) that limitation of actions is a matter to be decided as a triable issue at trial and not summarily through a preliminary or summary procedures. It is also crucial to state that the Respondent has not justified why it sought to be the Intended 2nd Respondent’s mouth piece even before the 2nd Respondent was even joined to the proceedings. The above case held as follows; “12. Limitation of actions occupied a central place in the trial court and in this appeal. It has been hotly contested in both courts. The question of limitation was raised at a preliminary stage through an interlocutory application. The trial court entertained the application and dealt with the question of limitation as a preliminary point and at a preliminary stage. Hence, the question whether the approach adopted by the appellant and entertained by the trial magistrate was the proper way of dealing with limitation of actions. This becomes a matter of great concern to this court. 8 13. The law as I understand it is that the defence of limitation of time is a matter for determination at the trial; it cannot be dealt with in a summary manner or at preliminary stage or as a preliminary objection. The court should formulate limitation as one of the issues for determination and decide it on evidence adduced at the trial. On this see the case of Oruta & Another vs. Nyamato [1998] KLR 590, where the court held that limitation of action:- ’’… could only be queried at the trial but not by… a preliminary objection… The appellant could raise the objection at the trial and the trial judge would have to deal with the matter on the evidence to be adduced at the trial’’ 14. See also the case of Divecon Ltd vs Shirinkhanu S. Samani Civil Appeal No. 142 0f 1997, where the court quoted with approval the words of Gachuhi, J.A., the leading judge in the Oruta case (ibid) that: ‘’It will be up to the judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintiff to be struck out is not encouraged by the Limitation of Actions Act…’’ The case of El-Busaidy vs. Commissioner of Lands [2002] KLR 508, buttressed the above position when it held that the issue of limitation under Government Lands Act could only be decided at the trial on evidence. Accordingly, the intention of the law is that the issue of limitation of actions should be undertaken and determined at the trial.” Going by the above decisions it is clear that the Court has discretion to allow a party to be enjoined after the limitation period so as to allow justice to prevail. In this case the Appellant made the decision to enjoin the Intended 2nd Respondent to the suit upon the realization that the current Respondent whom he has always understood as his employer denied and acted in concert with the Intended 2nd Respondent to argue that the latter was his true employer. The Court will have to listen to evidence in order to decide who as between the Respondent and Intended Respondent was the employer. Employment relationships may involve multiple actors exercising control over a worker. The joinder of the estate management company was therefore necessary to determine whether: the Respondent alone was the employer; or both entities constituted joint employers. 1. ISSUE NO 5: premature determination of the limitation question - The learned Magistrate erred by determining the limitation issue before the joinder of the proposed 2nd Respondent had been determined. The Respondent could not argue the limitation defence on behalf of the intended 2nd Respondent before the 2nd Respondent was enjoined. The limitation defence is personal to the party entitled to raise it and cannot properly be invoked by another party on its behalf. An existing Respondent cannot control how the Claimant frames his case or who he introduces. If the intended Respondent wishes to rely on limitation they must enter appearance and plead it themselves. The identity of the employer or employers is central to the dispute. 46. By refusing joinder and simultaneously determining that the amendment was timebarred, the learned Magistrate effectively determined limitation before all potentially liable parties were before the court. 2. ISSUE NO 6: improper exercise of discretion - An objective appraisal of the Trial Court’s Ruling (at pages 103 to 105 of the Record) demonstrates no analysis whatsoever of the Appellant’s submissions. Respectfully, it is as if the Trial Court only considered the Respondents’ arguments only. This led to injustice, and the effect of the impugned ruling was to prevent the dispute from being determined on its merits. It is now settled that a court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. . By declining the amendment and refusing joinder of a necessary party, the trial court effectively shut out the Appellant’s claim before trial. The learned Magistrate committed serious errors of law and principle in dismissing the Appellant’s application for amendment. The Trial Court in summary: miscomputed limitation; misapprehended the pleadings; failed to consider material arguments; refused joinder of a necessary party; prematurely terminated limitation. The cumulative effect was to prevent the dispute from being determined on its merits. The respondent’s submissions 1. Legal principles on amendment of pleadings - The power of the court to allow amendments is found under Order 8 Rule 3(5) of the Civil Procedure Rules, which provides: "An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment." The Courts have decided that while amendments are generally permissible, they must not be allowed where they: i) ii) Introduce a new cause of action that is time-barred; Result in substantial injustice to the opposing party; iii) Are calculated to defeat the statute of limitations. 4. In Central Kenya Ltd v Trust Bank Ltd & Others [2000] eKLR, the Court of Appeal stated: "The guiding principle in applications for leave to amend is that the amendment is necessary for determining the real question in controversy between the parties... Provided there is no injustice to the other side." 2. The law on limitation – section 90 of the Employment Act - Section 90 of the Employment Act, 2007 provides: "Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained of........." The cause of action in this matter arose on 31st August 2021. The original Statement of Claim filed on 30th August 2022 was within time as that was the last day to file the same. However, the application for leave to amend was filed on 31st August 2024, which was beyond the three years' period after the cause of action arose. No leave was sought to file the application out of time either. The proposed amendments sought to introduce: i) New monetary claims including gratuity, overtime, paternity leave pay, detailed underpayments and rest days; ii) A new party, Traca Management Services Limited, which was never sued within the limitation period. These claims and the proposed joinder are not clarifications of existing pleadings but new and independent causes of action. As such, they are subject to the strict limitation period under Section 90 wherefore an application for leave to amend or introduce a new party ought to have been filed and determined well before 30.8.2024 so the Amended Claim would have been filed within the period of upto 30.8.2024. In Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] eKLR, the Court of Appeal held: "The court lacks jurisdiction to entertain employment claims filed outside the three-year limitation period." The limitation period is jurisdictional. Once it lapses, the court has no power to revive a cause of action, even through amendment. 3. On the joinder of Traca Management Services Limited -The Claimant also seeks to join Traca Management Services Limited as a co-respondent for the first time, more than three years after the date of the alleged dismissal. In Butali Sugar Mills v Shari & another (Employment and Labour Relations Appeal E029 of 2022) [2023] KEELRC 589 (KLR), the court held: "In the instant case, no leave was sought to amend the claim to join the appellant, the time limit of 3 years under section 90 of the Employment Act having expired. The court also finds that it does not have the power to extend time under section 90 of the Employment Act as held in John Kiiri Njiiri v University of Nairobi (2021) eKLR, where the court expressed itself thus: - 'Section 90 of the Employment Act is framed in mandatory terms. A claim based on a contract of employment must be filed within 3 years from the date the cause of action arose. This court is denied jurisdiction to extend time to file suits not lodged with the court within 3 years from the date the cause of action arose." The joinder of Traca is statute-barred. It introduces a new Respondent against whom no claim was made within the prescribed limitation period, and it must therefore be refused. 4. Prejudice and abuse of court process -The Respondent will suffer serious prejudice if the application is allowed. The amendment seeks to expand the dispute significantly, both in value and complexity, requiring the Respondent to reconstruct a fresh defence two years after filing the initial response. The proposed amendment is not brought in good faith. It attempts to introduce through the backdoor substantially new claims long after the limitation period, contrary to the clear provisions of law, principles of fairness, certainty, and the overriding objective of the Employment and Labour Relations Court.Based on the foregoing, the Respondent respectfully submits that: The said Appellant's said application at the Lower Court offended Section 90 of the Employment Act; The new claims and joinder of a new party were clearly timebarred; The amendments sought were procedurally and substantively prejudicial; The said application did not meet the legal threshold for amendment under Order 8 Rule 3(5) of the Civil Procedure Rules; This Honourable Lower Court lacked jurisdiction to allow the amendment in the circumstances. DECISION 1. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 2. The appellant filed suit in the lower court dated 30th August 2022 and said to have been filed on the same date. The appellant pleaded his employment was terminated on the 31st August 2021. In the claim, he sought for the following reliefs- a) A declaration that his dismissal was unfair, wrongful and unlawful. b) Claimant’s employment records as per Section 74(1) (d), (e), (f), (g), (h) and (k). c) Service pay on account of NSSF non remission d) Underpayments of salary e) House allowance f) Gratuity for security guards @ 18 pays for every year worked. g) Rest days h) Public holiday pay i) Pay in lieu of annual leave j) Paternity leave pay k) Pay in lieu of notice for one month l) Overtime m) Compensation for unlawful dismissal being 12 months pay in compensation. n) Costs of the suit. o) Interest at 14% on special damages from the date of filing suit until payment in full. p) Interest at 14% on compensation and costs from the date of Judgement. q) Certificate of Service. r) Any further or other relief the Court may deem fit to grant. (statement of claim and accompanying documents on pages 6-12 of ROA dated 2nd December 2025) 1. In the impugned application, the appellant sought leave of the Court to amend the statement of claim dated 30th August 2022 on the ground to ably present his case and in the interest of justice. The appellant further stated the respondent would not suffer any prejudice as they would have an opportunity to defend. 2. There was no dispute that the claim as filed was in compliance with section 89 of the Employment Act, to wit – ‘**89. Limitations-** Notwithstanding the provisions of section [4(1)](https://new.kenyalaw.org/akn/ke/act/1968/21/~part_II__sec_4__subsec_1) of the Limitation of Actions Act ([Cap. 22](https://new.kenyalaw.org/akn/ke/act/1968/21)), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.’ The appellant’s services were terminated on the 31st August 2021; thus, the claim was filed within 12 months as relates to the continuing injury claims and in 3 years as relates to the termination claims. The expiry date for filing termination claims was this 30th August 2024. The draft amended claim sought to add the 2nd respondent, Traca Management Services Ltd in the amended claim; the appellant pleaded that the basis of the joinder was that the 2nd respondent's director was the 2nd witness to effect that the appellant was their employee. The witness statement indicated that the proposed 2nd respondent had engaged the claimant in 2018 and had even defended the claim. The trial court, on this proposed amendment to join the 2nd respondent, held that the amendment sought to bring a new party on board long after the expiry of time and would be prejudicial to the intended respondent. 3. The trial court rightly relied on Rule 34 of the Court Rules (2024), to wit: '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 proposed 2nd respondent was already in the case, having sworn a statement in the matter (page 18 of the claim ) and defended the claim . The allegation that they would suffer prejudice by being brought in the claim was thus not based on facts before the court. They alleged to be the employer and not the 1st respondent and were thus a necessary party in the claim. The court further was of the opinion that the proposed 2nd respondent, on being joined, was at liberty to file a response and challenge the joinder, and it was not up to the trial court to speak for a party not before it. I am running a few minutes late; my previous meeting is running over. 2. As to whether the intended amendment had been caught up by the expiry of the limitation of time as of 31st August 2024, I do agree with the trial court that the time for filing the claim terminated on 30th August 2024. The court considered the amendments sought. Specifically, the proposed amended paragraph 26 gave particulars of the reliefs sought. The court noted that all those claims were in the original claim and the amendments only sought to give particulars. The court considered the case of underpayment as pleaded in paragraph 12 of salary paid and the claim that it was not based on minimum salary.(draft amended claim at page 27-33 of ROA). I find that even without the details the court could still have determined the validity of the claims. The claim for service pay, and housing is statutory. The claim for overtime was there and pleaded. The court finds that the proposed amendments do not defeat the defence of time limitation as the reliefs were in the original claim. There is no prejudice to the respondents as the court, on granting leave, would grant time for response by the respondents. 3. The court finds that the trial court erred in failing to grant leave for the amendment of the claim as sought, as there was no prejudice to be suffered by the respondent and the proposed 2nd respondent by allowing the amendments. CONCLUSION 1. The appeal is allowed. The Ruling and Order of the Hon. L. Ambasi (CM) delivered on 12th August 2025 in Milimani MCELRC No. 1490 of 2022 is set aside and substituted with an order that the application dated 31st August 2024 is allowed with costs to the respondent in the cause. The applicant is granted leave of the court to amend its statement of claim dated 30th August 2022 as per the draft annexed to the supporting affidavit. 2. Taking into account the error was the interpretation and application of the law by the trial court, I order each party to bear its own costs. 3. The matter is remitted to the Magistrates' court for hearing and determination before any magistrate with jurisdiction other than Hon. L. Ambasi (CM). Mention before the Chief Magistrate on 2nd September 2026 for further directions. 4. This case is marked as closed. 5. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant : Burugu Respondent: Muturi