[2016] KEELRC 1739 (KLR)
The court found that the amendments made by the claimant did not introduce a new cause of action but only varied the remedies sought in accordance with the procedures of the Employment and Labour Relations Court. The cause of action remained the same as originally pleaded. The court further held that time does not...
Source-derived case information.
- Citation
- [2016] KEELRC 1739 (KLR)
- Parties
- Claimant: Dr. Meshack Nyamiaka Ong’uti; Respondent: Kenyatta National Hospital; Respondent: The Permanent Secretary Ministry of Health; Respondent: The Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 221 of 2014
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Amendment and Limitation of Actions
- Outcome
- preliminary objection dismissed
- Legal Topics
- Amendment of Pleadings, Limitation of Actions, Counterclaims, Employment Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Meshack Nyamiaka Ong’uti
Claimant
Kenyatta National Hospital
Respondent
The Permanent Secretary Ministry of Health
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Amendment and Limitation of Actions
Legal Issues
- 1 Whether the amended statement of claim introduces a new cause of action that is time-barred under the Public Authorities Limitation Act and the Limitation of Actions Act.
- 2 Whether the amendments made by the claimant are permissible at this stage of proceedings.
- 3 Whether the respondent's counterclaim is time-barred.
Ratio Decidendi
The court found that the amendments made by the claimant did not introduce a new cause of action but only varied the remedies sought in accordance with the procedures of the Employment and Labour Relations Court. The cause of action remained the same as originally pleaded. The court further held that time does not run during the pendency of a suit in court, and therefore the issue of limitation did not arise in respect of the claimant's amendments. The court noted that it was the respondent who had introduced a fresh counterclaim, which may itself be time-barred, but this issue was not canvassed and would be addressed at the hearing of the suit on its merits. Accordingly, the preliminary...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection by the 2nd respondent is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 221 OF 2014
DR. MESHACK NYAMIAKA ONG’UTI ..…..........................…........…CLAIMANT
VERSUS
KENYATTA NATIONAL HOSPITAL .............................................. RESPONDENT
THE PERMANENT SECRETARY MINISTRY OF HEALTH......2ND RESPONDENT
THE HON. ATTORNEY GENERAL..…............................…….3RDRESPONDENT
Mr. Ondari for 1st respondent / objector
M/S Akino for 2nd & 3rd respondent
Mr. Nyaribo for claimant
RULING
The 1st respondent filed a notice of preliminary objection dated 9th September 2015 to wit;
The amended plaint substitutes the initial cause of action which is time barred under section 3(2) of the Public Authorities Limitation Act and section 4(1) of the limitation of Action Act.
The objection is opposed by the claimant.
Determination
The suit was filed in 2004 at the High Court where the matter has been pending until it was transferred to this court on 14th February 2014.
The claimant sought leave to amend the plaint and file an amended statement of claim incompliance with the Employment and Labour Relations Court (Procedure) rules, 2010 which apply in this court.
The amended statement of claim was filed on 16th March 2015.
The 3rd respondent filed an amended statement of defence and introduced a counter claim in the defence for the first time.
It is trite that pleadings may be amended at any time before judgment. Time does not run during the pendency of a suit in court.
The court is not satisfied that the amendments made by the claimant have introduced a new cause of action. The cause of action remains the same. It is the remedies sought that have varied in line with the pleadings done in the Employment and Labour Relations Court. The issue of time bar does not arise.
Quite to the contrary, it is the respondent who has introduced a fresh counterclaim that was hitherto not in the plaint. It is this counterclaim which may be time-barred. Since this matter was not canvassed by the parties, it will be dealt with during the hearing of the suit on the merits.
The preliminary objection by the 2nd respondent is dismissed. Costs in the cause.
Dated and Delivered at Nairobi this 5th day of February 2016.
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE