[2017] KEELRC 1012 (KLR)
The court found that, applying the principles for amendment of pleadings, the proposed amendments were generally permissible as they were necessary for determining the real issues and did not introduce new causes of action except for the golden handshake claim. However, the golden handshake claim constituted a new...
Source-derived case information.
- Citation
- [2017] KEELRC 1012 (KLR)
- Parties
- Claimant: Kenya Union of Domestic Hotels Education Institutions, Hospitals and Allied Workers (KUDHEIHA); Respondent: Catering and Tourism Development Levy Tourism
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 235 of 2009
- Procedural Posture
- Cause / Ruling on Application to Amend Statement of Claim
- Outcome
- Application to amend statement of claim allowed in part; amendment permitted except for the golden handshake claim.
- Legal Topics
- Amendment of Pleadings, Limitation Periods, Employment Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Domestic Hotels Education Institutions, Hospitals and Allied Workers (KUDHEIHA)
Claimant
Catering and Tourism Development Levy Tourism
Respondent
Procedural Posture
Cause / Ruling on Application to Amend Statement of Claim
Legal Issues
- 1 Whether the claimant should be granted leave to amend the statement of claim after seven years from filing.
- 2 Whether the proposed amendment introduces a new cause of action outside the limitation period under Section 90 of the Employment Act.
- 3 Whether the amendment would prejudice the respondent.
Ratio Decidendi
The court found that, applying the principles for amendment of pleadings, the proposed amendments were generally permissible as they were necessary for determining the real issues and did not introduce new causes of action except for the golden handshake claim. However, the golden handshake claim constituted a new cause of action introduced after the expiry of the statutory limitation period under Section 90 of the Employment Act. Allowing this would prejudice the respondent and contravene the law on limitation of actions. Therefore, the court allowed the amendment except for the golden handshake claim, which was disallowed.
Court Disposition
Application to amend statement of claim allowed in part; amendment permitted except for the golden handshake claim.
Orders
- Claimant to file an amended memorandum of claim excluding the prayer for the golden handshake.
- Respondent to file an amended response, if any, within 21 days of service.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 235 OF 2009
KENYA UNION OF DOMESTIC HOTELS EDUCATION
INSTITUTIONS, HOSPITALS AND ALLIED WORKERS (KUDHEIHA) ……………….…. CLAIMANT
-VERSUS-
CATERING AND TOURISM DEVELOPMENT LEVY TOURISM ……………........…... RESPONDENT
RULING
1. The claimant seeks to amend the statement of claim vide a notice of motion application filed on 13th July 2016.
2. The intention is to add certain particulars erroneously omitted in the original statement of claim.
3. The application is opposed vide grounds of opposition filed on 5th August 2016 to wit that the application is bad in law as it is time barred in terms of Section 90 of the Employment Act.
4. The principles of amendment were set out by the Court of Appeal in Central Kenya Ltd –vs– Trust Bank & others, Appeal No. 222 of 1998 as follows:-
a) The amendments are necessary for determining the real question in controversy.
b) To avoid multiplicity of suits provided there has been no undue delay.
c) Only where no new or inconsistent cause of action is introduced that is, if new cause of action does not arise out of the same facts or substantially the same facts as a cause of action.
d) That no vested interest or accrued legal rights is affected; and
e) long as it does not occasion prejudice or injustice to the other side.
5. On the question of delay, the suit was filed on 22nd July 2009 and the amendment is being sought, more than seven (7) years from the date of filing.
6. The court has perused the draft amended memorandum of claim and the document intends to introduce only one new claim of Golden handshake in respect of all the claimants. All the other claims are not new and were in the memorandum of claim except that the figures have now been quantified in the amended draft.
7. Considering the principles set out above, the court allows the proposed amendment except the claim for golden handshake which seeks to introduce a new cause of action after the limitation period. The particular amendment coming so late after the filing is likely to prejudice the respondent in a manner not likely to be remedied by way of costs.
8. The claimant is directed to file an amended memorandum of claim leaving out the prayer for the Golden handshake.
9. The respondent to file an amended response if any within 21 days of service.
10. Costs in the cause.
Dated at Nairobi this 12th day of July, 2017.
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE