[2018] KEELRC 2438 (KLR)
The court found that the facts necessitating the amendment became apparent during the claimant's testimony, specifically regarding the denial of mandatory maternity leave. The respondent's opposition lacked merit, and there was no evidence that the amendment would cause irreparable prejudice. The court applied the...
Source-derived case information.
- Citation
- [2018] KEELRC 2438 (KLR)
- Parties
- Applicant: Kenya Building Construction Timber and Furniture Industries Employees Union; Respondent: Kartar Singh Dhupar
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 744 of 2012
- Procedural Posture
- Employment Claim / Ruling on Application to Amend Memorandum of Claim
- Outcome
- Application to amend memorandum of claim granted.
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Maternity Leave, Amendment of Pleadings, Employee Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Building Construction Timber and Furniture Industries Employees Union
Applicant
Kartar Singh Dhupar
Respondent
Procedural Posture
Employment Claim / Ruling on Application to Amend Memorandum of Claim
Legal Issues
- 1 Whether the claimant should be allowed to amend the memorandum of claim to include a prayer for payment of three months maternity leave.
- 2 Whether the proposed amendment would prejudice the respondent in a manner that cannot be remedied by costs.
Ratio Decidendi
The court found that the facts necessitating the amendment became apparent during the claimant's testimony, specifically regarding the denial of mandatory maternity leave. The respondent's opposition lacked merit, and there was no evidence that the amendment would cause irreparable prejudice. The court applied the principle that amendments should be freely allowed before judgment unless they cause unremediable prejudice, and thus granted the application to amend the memorandum of claim.
Court Disposition
Application to amend memorandum of claim granted.
Orders
- The application to amend the memorandum of claim is granted.
- The matter to proceed before any Judge in Nairobi since the trial Judge has left the station.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CASE NO.744 OF 2012
(BEFORE HON. JUSTICE MATHEWS N. NDUMA)
KENYA BUILDING CONSTRUCTION TIMBER
AND FURNITURE INDUSTRIES EMPLOYEES UNION.......CLAIMANT
VERSUS
KARTAR SINGH DHUPAR...............................................RESPONDENT
RULING
1. The application dated 22nd August, 2017 seeks to have the Memorandum of Claim amended to include a prayer for payment of three (3) months maternity leave.
2. The matter is partly heard on 18th May, 2017 when the court stood down the claimant while testifying in Chief and it became apparent from her testimony that she had given birth to a child prior to termination of her employment and had not been granted the mandatory three (3) months maternity leave by the Respondent.
3. There is no sound basis for opposing the application to amend in the replying affidavit of Mr. Nirmal Singh Dhupah.
4. The Claimant was represented by M/s. Chege advocate who correctly noted during the hearing of the suit the need to amend the memorandum of claim to include a matter that arose thereof and had not been pleaded.
5. The facts of the case as recorded are clear and is disingenuous of the applicant to attribute the proposed amendment to prompting by the court.
6. It is trite law that an amendment may be made at anytime before judgement provided the said amendment does not prejudice a party in a manner that cannot be remedied by way of costs.
7. The application to amend is granted and the matter to proceed before any Judge in Nairobi since the trial Judge has left the station.
Dated and Signed in Kisumu this 1st day of February, 2018
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 16th day of February, 2018
Maureen Onyango
Judge
Appearances
M/s. Chege for Claimant
Koki for Respondent
Anne Njung’e – Court Clerk