https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1742

Nyakora v Registered Trustees Archdiocese Of Kisumu (Cause E013 of 2025) [2026] KEELRC 1742 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1742 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Cause E013 of 2025 Nzioki wa Makau, J June 24, 2026 Between Dr George Nyakora Claimant and The Registered Trustees Archdiocese Of Kisumu Respondent Ruling 1.The Claimant has moved this court via a Notice of Motion dated 4th November 2025 seeking leave to amend his Memorandum of Claim dated 23rd February 2025 and to file additional documents. He also seeks costs of the application. The application is premised on the five grounds on its face and the affidavit of Mr. Tobias Kapinde his advocate. It is deponed that at the time of filing suit the Claimant had not furnished his advocates with critical information, which information was only availed on 30th October 2025. It is therefore contended that the amendment as per the draft Memorandum of Claim (TK-1) as well as additional documents (TK-2) are necessitated to enable the court effectually determine the issues in dispute. Furthermore, the deponent avers that because pleadings have closed pursuant to Order 2 Rule 13 of the Civil Procedure Rules leave is required before the proposed amendment can be effected. 2.In opposition to the application the Respondent filed grounds of opposition dated 19th March 2026. It contends that the proposed amendment does not add any value and is only meant to delay expeditious disposal of the claim. It further contends that the proposed amendment has been brought very late in the day without any explanation and is therefore an abuse of the court process. 3.Only the Claimant filed written submissions in compliance with court directions. Claimant’s Submissions 4.The Claimant identifies two issues for determination, namely:a.Whether leave should be granted to amend the Memorandum of Claim after close of pleadings; andb.Whether leave should be granted to file additional documents 5.On the first issue the Claimant submits that this court retains inherent power to make orders necessary for the ends of justice under section 3A of the Civil Procedure act. He further contends that Order 8 rule 3(1) of the Civil Procedure Rules allows amendment of pleadings at any stage with leave. The Claimant also emphasizes that Kenyan jurisprudence leans towards allowing amendments where they assist court’s in determining the real issues in controversy and where no prejudice incapable of compensation by costs is occasioned to the opposing party. In support of this position reliance is placed on the decision in Lawi Duda & 21 others v Bamburi Cement Limited [2008] KENSC 3026 (KLR), where the court allowed an amendment that merely particularized the claim, noting that the hearing had not commenced and any prejudice could be compensated by costs. The Applicant also cites Samura Engineering Limited v Kenya Tea Development Authority & Njuca Consolidated Limited [2011] KEHC 632 (KLR), in which the court, applying the principles in Eastern Bakery v Castelino [1958] EA 461, reiterated that amendments sought before hearing should generally be freely allowed. Additional reliance is placed on Selina Musungu Okwisya v Dominic Njuguna Mbigi t/a Mbigi Njuguna & Company Advocates [2018] KEELRC 721 (KLR), where the court held that although leave is required once pleadings have closed, amendments should ordinarily be allowed where no substantial prejudice is demonstrated, with the opposing party being accorded a corresponding right to respond. The Claimant therefore urges the court to exercise discretion in its favour, maintaining that the Respondent will not suffer any prejudice as it will have the opportunity to file an amended response and additional documents if need be. 6.On the second issue the Claimant submits that the additional documents are consequential to and supportive of the proposed amendment. He therefore asserts that allowing the amendment while excluding the documents would be an exercise in futility and would be contrary to substantive justice. In any case he avers that no prejudice will be suffered by the Respondent as it would have the opportunity to respond to the documents and to subject them to scrutiny at trial. Consequently, he urges the court to allow the application as prayed. Disposition 7.The application seeks leave to amend pleadings. When deciding whether to grant leave to amend or not, a court must consider whether the amendment was filed without undue delay; whether the applicant has requested the amendment in bad faith or as a dilatory tactic; whether the amendment will unduly prejudice the respondent and lastly; whether the amendment is an exercise in futility. The amendment sought in the application before the Court was filed without undue delay and is indicated to be one that will permit the party to better articulate the case. That in my view covers the first two aspects to be considered by a Court. On the issue as to whether it will occasion prejudice against the opposing party, in my considered view, the Respondent will have an opportunity to respond to the amendment by filing an amended defence and also ensuring the documents it may wish to rely on in the new defence are filed as well. That would take care of any issues of prejudice as there would a balancing of the scales in that regard. On whether the amendment is an exercise in futility, in my considered view, the Claimant has not made this application to waste judicial time nor is the application one that can be deemed frivolous or vexatious. As such in the Court’s view, there is merit in granting the request to amend pleadings which is hereby granted. 8.The Claimant is at liberty to file and serve an amended statement of claim within 14 days of the Ruling with corresponding leave granted to the Respondent to file an amended defence within 14 days of service of the amended claim by the Claimant. The costs in the motion will abide the outcome of the suit. There will be directions as to the next appearance in Court upon delivery of this Ruling.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF JUNE 2026NZIOKI WA MAKAU, MCIArb.JUDGE