[2023] KEELRC 2143 (KLR)
The court held that while amendments to pleadings should generally be allowed to facilitate the determination of the real issues in controversy, such amendments must not introduce new causes of action that are statute barred or outside the court's jurisdiction. The proposed amendments to the statement of response...
Source-derived case information.
- Citation
- [2023] KEELRC 2143 (KLR)
- Parties
- Claimant: Style Industries Limited; Respondent: Oliver Kasumba
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1086 of 2018
- Procedural Posture
- Employment Cause / Ruling on Application to Amend Memorandum of Response and Introduce Counterclaim
- Outcome
- Application for amendment partially allowed; amendments to statement of response permitted, counterclaim disallowed.
- Judges
- NJ Abuodha
- Legal Topics
- Amendment of Pleadings, Counterclaim, Jurisdiction, Limitation Periods, Employment Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Style Industries Limited
Claimant
Oliver Kasumba
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Amend Memorandum of Response and Introduce Counterclaim
Legal Issues
- 1 Whether the respondent should be allowed to amend the memorandum of response to include a counterclaim.
- 2 Whether the proposed counterclaim is statute barred under section 90 of the Employment Act.
- 3 Whether the court has jurisdiction to entertain the counterclaim based on events after termination of employment.
Ratio Decidendi
The court held that while amendments to pleadings should generally be allowed to facilitate the determination of the real issues in controversy, such amendments must not introduce new causes of action that are statute barred or outside the court's jurisdiction. The proposed amendments to the statement of response were factual representations relevant to the dispute and did not introduce new causes of action or defences, and were therefore allowed. However, the counterclaim related to events that occurred after the employment relationship had ended and, even if actionable, fell outside the jurisdiction of the Employment and Labour Relations Court. Furthermore, the counterclaim was based on...
Court Disposition
Application for amendment partially allowed; amendments to statement of response permitted, counterclaim disallowed.
Orders
- Amendments sought in the draft statement of response are allowed.
- Proposed counterclaim is disallowed on grounds of lack of jurisdiction and limitation of action under section 90 of the Employment Act.
Full Case Text
Judgment text and source record
22 paragraphs
Style Industries Limited v Kasumba (Cause 1086 of 2018) [2023] KEELRC 2143 (KLR) (22 September 2023) (Ruling)
Neutral citation: [2023] KEELRC 2143 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1086 of 2018
NJ Abuodha, J
September 22, 2023
Between
Style Industries Limited
Claimant
and
Oliver Kasumba
Respondent
Ruling
1. By a Motion dated February 20, 2023 the respondent/applicant sought to amend his memorandum of response to include a counterclaim. The claimant objected to the proposed amendments contending particularly that the counterclaim sought to introduce matters that were statute barred and further that they did not fall within the jurisdiction of the Court.
2. The Court of Appeal in the case of Central Kenya Limited –v- Trust Bank Limited (2000)2 EA 365 held that: -'that a party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.'Further in the case of Eastern Bakery v Castelino (1958) 1 EA 461 (CAK)the Court therein held that :'It will be sufficient, for purposes of the present case, to say that amendments to pleadings sought before 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….the court will not refuse to allow an amendment simply because it introduces a new case…..but there is no power to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit…the court will refuse leave to amend where the amendment would change the action into one of a substantially different character…or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment e.g by depriving him of a defence of limitation accrued since the issue of the writ…the main principle is that an amendment should not be allowed if it causes injustice to the other side.'
3. The Court has perused the draft amended statement of response and has noted that the amendment sought in the draft response are factual representation of events that may have, in the view of the applicant, transpired during the material time. They do not introduce any new cause of action or defence. The Court however does not hold the same view regarding the counterclaim. The respondent avers in the proposed Counterclaim that on November 1, 2017, after he had been terminated by the respondent, he got employed by a company known as Di-Lorenzo as head of production. According to him, the claimant maliciously commenced the present suit and served him with the Court papers at his new place of work. As a consequence, his new employer was not happy with the case against him. The respondent further alleged that as a result of the malicious suit, he got distracted from being creative and productive in his department which led to him being declared redundant by his new employer. The respondent sought by way of counterclaim, compensation for mental depression and compensation from the claimant for deterring him from using his talent in another competitive company.
4. The foregoing are matters which took place when employer-employee relationship had ceased between the claimant and respondent and even if the constituted actionable wrongs in law, this Court does not have jurisdiction to adjudicate over the same. Besides, the respondent has himself admitted that the cause of action pleaded was beyond the three years stipulated under section 90 of the Employment Act. This Court and the Courts superior to it has stated in several judgments that section 90 of the Employment Act is couched in mandatory terms hence whenever the period stipulated therein for bringing actions founded on the Act or contract of employment has lapsed, it cannot be extended.
5. In conclusion that application for amendment is partially successful to the extent that the amendments sought in the draft statement of response are hereby allowed. The proposed counterclaim is hereby disallowed on grounds of lack of jurisdiction and limitation of action as stipulated under section 90 of the Employment Act.
6. Cost of the application shall abide the outcome of the main suit.
7. It is so ordered
DATED AT NAIROBI THIS 22NDDAY OF SEPTEMBER, 2023. ABUODHA JNJUDGE