[2019] KEELRC 1071 (KLR)
The court found that the claimant filed the amended statement of claim within the 14-day period following the filing of the reply to the response, meaning pleadings had not closed as alleged by the respondent. Consequently, under rule 14(6), the claimant was entitled to amend the statement of claim without seeking...
Source-derived case information.
- Citation
- [2019] KEELRC 1071 (KLR)
- Parties
- Claimant: Regina Nundu Nthekani; Respondent: Mrs. Rasmita Shah
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 127 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application to Strike Out Amended Statement of Claim
- Outcome
- application dismissed with costs to the claimant
- Judges
- B Ongaya
- Legal Topics
- Amendment of Pleadings, Procedural Timelines, Substantive Justice, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Regina Nundu Nthekani
Claimant
Mrs. Rasmita Shah
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application to Strike Out Amended Statement of Claim
Legal Issues
- 1 Whether the amended statement of claim was filed after close of pleadings contrary to the rules.
- 2 Whether leave of court was required to amend the statement of claim at the material time.
- 3 Whether procedural technicalities should override substantive justice in the circumstances.
Ratio Decidendi
The court found that the claimant filed the amended statement of claim within the 14-day period following the filing of the reply to the response, meaning pleadings had not closed as alleged by the respondent. Consequently, under rule 14(6), the claimant was entitled to amend the statement of claim without seeking leave of court. The court further emphasized that Article 159 of the Constitution mandates the advancement of substantive justice over procedural technicalities. Therefore, the respondent's application to strike out the amended statement of claim was without merit and was dismissed with costs to the claimant.
Court Disposition
application dismissed with costs to the claimant
Orders
- The application to strike out the amended statement of claim is dismissed.
- Costs of the application are awarded to the claimant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 127 OF 2018
REGINA NUNDU NTHEKANI.....................................CLAIMANT
- VERSUS -
MRS. RASMITA SHAH...........................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 19th July, 2019)
RULING
The respondent filed on 23. 04. 2019 the application dated 18. 04. 2019 through Bahati Mwamuye & Associates. The applicant prays for orders:
1) That the amended statement of claim dated 09. 04. 2019 filed on 09. 04. 2019 and served on the respondent on 11. 04. 2019 be struck out.
2) That the Honourable Court be pleased to issue any other orders ancillary to the above that the Honourable Court may deem just and expedient to issue.
3) That costs of the application be awarded to the applicant as against the claimant.
The application is based on the attached respondent’s affidavit and upon the following grounds:
a) The amended statement was filed after close of pleadings as per rule 13(4) of the Employment and Labour Relations Court(Procedure) Rules, 2016 because it was filed and served after lapsing of 14 days from service the response to the statement of claim. Further leave to amend was not granted as per rule 14 (6) of the Rules.
b) Leave was mandatory.
The claimant opposed the application by filing on 13. 05. 2019 the grounds of opposition through Maosa & Company Advocates. It was urged that the issues raised are procedural and as per Article 159 of the Constitution, the Court should advance substantive justice. Further, the reply to response was filed on 27. 03. 2019 and the amended statement of claim was filed on 09. 04. 2019 prior to lapsing of 14 days in rule 13(4) so that pleadings had not closed as was alleged for the applicant.
It is clear that under rule 14 (6) a party can amend pleadings before service or before close of pleadings. Rule 13(4) provides that pleadings will close 14 days after service of a reply to the response (which may be served in 7 days after service of the response). In this case, the reply was filed and indeed the applicant does not deny that the reply had been filed and 14 days had not lapsed. Thus pleadings had not closed. The Court finds that the claimant was entitled to amend the statement of claim without leave. Further the Court finds that Article 159 on substantive justice without regard to procedural technicalities apply in the present case.
In conclusion the application is hereby dismissed with costs to the claimant.
Signed, datedanddeliveredin court atNairobithisFriday 19th July, 2019.
BYRAM ONGAYA
JUDGE