[2018] KEELRC 721 (KLR)
The court found that although the claimant amended her claim without seeking leave of court as required under Order 8 of the Civil Procedure Rules, the amendment would not greatly prejudice the respondent, as they would have an opportunity to respond to the new facts introduced. The court relied on the principle...
Source-derived case information.
- Citation
- [2018] KEELRC 721 (KLR)
- Parties
- Claimant: Selina Musungu Okwisya; Respondent: Dominic Njuguna Mbigi t/a Mbigi Njuguna & Company Advocates
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1995 of 2017
- Procedural Posture
- Employment Cause / Ruling on Application to Strike Out Amended Statement of Claim
- Outcome
- Application to strike out amended statement of claim dismissed; amendment allowed.
- Judges
- HS Wasilwa
- Legal Topics
- Amendment of Pleadings, Leave of Court, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Selina Musungu Okwisya
Claimant
Dominic Njuguna Mbigi t/a Mbigi Njuguna & Company Advocates
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Strike Out Amended Statement of Claim
Legal Issues
- 1 Whether the amended statement of claim filed without leave of court should be struck out.
- 2 Whether the amendment prejudices the respondent.
Ratio Decidendi
The court found that although the claimant amended her claim without seeking leave of court as required under Order 8 of the Civil Procedure Rules, the amendment would not greatly prejudice the respondent, as they would have an opportunity to respond to the new facts introduced. The court relied on the principle that amendments should be freely allowed before hearing if no injustice is caused to the other party, and any injustice can be compensated by costs. Therefore, the court allowed the amendment and granted the respondent a chance to respond.
Court Disposition
Application to strike out amended statement of claim dismissed; amendment allowed.
Orders
- The amended statement of claim is allowed to stand.
- The respondent is granted leave to respond to the amended claim.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT
ATNAIROBI
CAUSE NO. 1995 OF 2017
(Before Hon. Lady Justice Hellen S. Wasilwa on 25th October 2018)
SELINA MUSUNGU OKWISYA......................................................CLAIMANT
VERSUS
DOMINIC NJUGUNA MBIGI
T/A MBIGI NJUGUNA & COMPANY ADVOCATES.............RESPONDENT
RULING
1. The Application before Court is the chamber Summons filed by the Respondent/Applicant herein under Section 3A of the Civil Procedure Act Order VI rule II, Order VI Rule 13 and Order VIA rule 3 of the Civil Procedure Rules and all other enabling provisions of the law.
2. The Applicant seeks that the Amended Statement of Claim dated 13th March 2018 be struck out on the grounds that the same was filed and served on 19/3/2018 after close of pleadings without leave of Court contrary to the law.
3. The Respondent/Claimant opposed the Application on the ground that the law on limitation of amendment of pleadings is an issue of technicality, which has no place in modern jurisprudence. That the Court must therefore consider the substance of the claim rather than the technicality raised.
4. I note that indeed the claim was filed on 6/10/2017 and a defence filed on 27/11/2017. The Claimant proceeded to file an Amended Claim on 13/3/2018 without seeking leave of this Court.
5. I have considered the averments of both parties. The Application is filed under provisions of law not known. It is however, my finding that the Claimant proceeded to amend her claim without seeking leave of Court as expected under Order 8 of the Civil Procedure Rules.
6. That notwithstanding, the amendment done will not greatly prejudice the Respondent/Applicants herein as they will have a chance to respond to the new facts introduced.
7. In Eastern Bakery vs Castelino (1958) E.A 461, Sir Kenneth O’Conner, President of the then Court of Appeal of East Africa Opined at Page 462:-
“It will be sufficient…….. to say that amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side and that there is no injustice if the other side can be compensated by costs”.
8. I do agree with the above preposition and find that the amendment though effected without leave will not prejudice the Respondents. I will allow it and give Respondents a chance to respond to the same.
9. Costs in the cause.
Dated and delivered in open Court this 25th day of October, 2018.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Rotich holding brief for Mr. Mungai for Respondent – Present
Otieno holding brief for Miss Ogera for Claimant – Present