[2017] KEELRC 320 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NO. 1677 OF 2012

JULIUS MICHAEL OOKO……………...……………..…….......CLAIMANT

VERSUS

TATA CHEMICALS MAGADI LIMITED..….........................RESPONDENT

RULING

1. By a Notice of Motion dated 5th August, 2016 the claimant sought leave of court to amend the statement of claim as shown in the draft amendment of claim. The application was brought on the grounds among others that the amendment sought was necessary to bring the real issues between the parties before the court for effectual determination thereof. Further, that the amendment sought would not prejudice the respondent in anyway.

2. The respondent opposed the application and filed a replying affidavit through one John Kabere who deponed that he was the Human Resource Manager of the respondent. He stated in the main that the application to amend had been filed over four and half years after the acceptance of the claimant’s resignation hence inordinately late.

3. In support of the application Mr Nyangoro for the applicant submitted that the proposed amendment was aimed at bringing before the court and to the knowledge of the respondent the entire quantum of the claimant’s claim and that the proposed amendments will not prejudice or cause injustice to the respondent in any way. In support of the submission, Counsel relied on the case of Eastern Bakery Vs Castetine [1958] EA 461 where the court stated:

“….amendments to pleadings sought before the hearing should be freely allowed; if they can be made without injustice to the other side and there is no injustice on the other side which cannot be compensated by costs”,

Counsel further relied on the case of Mediterranean Shipping Co SA Vs KPA [2008] Eklr.

4. The respondent on its part submitted that there was inordinate delay of over four and half years. To support the submission on what constitutes inordinate delay counsel relied on the case of Geoffrey Muriungi & Anor Vs John Rukunga [2016] eKLRwhere it was stated that to discern inordinate delay it must be such delay that goes beyond acceptable limits given the nature of the act to be performed. Counsel further cited the case of Moses Mwangi Kimaru Vs Shammi Kanjira pparambi Thomas & 2 Others [2014] eKLRwhere it was stated that an application for amendment should be made at the earliest possible moments. And where there is delay in applying for amendment the plaintiff must give satisfactory reason for the delay. According to Counsel therefore, the amendment was tainted with delay which had not been sufficiently explained. Counsel further submitted that the respondent would be prejudiced as it was unlikely to trace its material witness and documentation to enable it effectively defend the new claim.

5. In the original memorandum of claim the claimant pleaded among others that the respondent seized and took advantage of minor differences and blew them out of proportion by alleging he assaulted one Ken Njenga a fact which was not true and was never reported to the police in any event. The claimant further pleaded that arising from this event the respondent used undue influence to arm twist the claimant into writing a resignation letter. The particulars of undue influence were stated as threat to have the claimant arrested and charged if he did not resign and further that the respondent threatened to summarily dismiss him with loss of all dues if he did not resign. The claimant therefore pleaded that the respondent unlawfully and unfairly terminated his employment.

6. In the draft amended claim it is stated at paragraphs 4 and 5 as follows:

(a) It is therefore the claimant’s case that the respondent unlawfully and unfairly terminated his employment

(b) The claimant avers that the procedure of summarily dismissing an employee under the provisions of the Employment Act were not followed and therefore contends that the total amount payable to the claimant by the respondent is Kshs 3,856,000/= made up as follows:

i. Service for 15 days for every year worked for 16 years from 1995 to 2011 that is 96,400x16 1,542,400. 00

ii. Equivalent on one year’s salary as provided for Under section 49(1)

(c ) of the Employment Act Kshs 2,313,600. 00

Total Kshs 3,856,000. 00

7. The paragraphs seem to constitute the substance of the amendments which the respondent disputes. These amendments sought are in the court’s view an expansion of the averments over the unlawfulness and or unfairness of the termination of claimant’s services. They seek to elaborate and quantify the claim against the respondent. In the court’s view, they in no way introduce new issues that would alter or surprise the respondent’s defence to the claim.

8. Honourable Justice Njagi in the case of Mediterranean Shipping Co SA Vs KPA [2008] Eklr.Stated that the paramount consideration is whether the application for leave to amend is made in good faith. For this purpose good faith meant that the amendments were sought for the purpose of raising the real question in controversy between the parties, and was not dishonest or intended to overreach the opposite party or made for any ulterior motive and relies on facts which are substantially true and genuine to the matter in controversy between the parties.

9. Considering the nature of the amendments sought and the general principles governing amendment of pleadings stated by Njagi J above, the court is of the view that the amendments sought are genuine and if allowed would not occasion the respondent any prejudice.

10. The application is therefore allowed. Costs in the cause.

11. It is so ordered.

Dated at Nairobi this 3rd day of November, 2017

Abuodha J. N.

Judge

Delivered this 3rd day of November, 2017

Abuodha J. N.

Judge