https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1379

Universities’ Academic Staff Union Egerton University Chapter Branch v Egerton University & 5 others (Employment and Labour Relations Cause E020 of 2023) [2026] KEELRC 1379 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1379 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Employment and Labour Relations Cause E020 of 2023 AN Mwaure, J May 22, 2026 Between Universities’ Academic Staff Union Egerton University Chapter Branch Claimant and Egerton University 1st Respondent The Council, Egerton University 2nd Respondent The Vice-Chancellor, Egerton University 3rd Respondent and Board of Trustee, Egerton University Retirement Benefits and Scheme 1st Interested Party Kenya University Staff Union Egerton University Branch 2nd Interested Party Retirement Benefits Authority 3rd Interested Party Ruling Introduction 1.The Claimant/Applicants filed a Notice of Motion, dated 9th December 2025, seeking the following orders that:1.This Honourable Court be pleased to grant the Claimant/Applicant leave to amend the Memorandum of Claim dated 10th May 2023.2.This Honourable Court be pleased to grant such further or other orders as it may deem just, expedient, and appropriate in the circumstances of this matter.3.This Honourable Court be pleased to deem the annexed Draft Amended Claim as duly filed upon payment of the requisite fees. 2.The application is brought to be expressed under section 1A, 1B & 3A of the Civil Procedure Act, Order 8 Rule 3, Order 45 of the Civil Procedure, Order 51 Rule 1 of the Civil Procedure Rules and Article 159(2) and 165 of the Constitution. Claimant/Applicant’s supporting affidavit 3.The application is supported by the affidavit of Dr. Grace W Kibue, the Claimant/Applicant’s Chapter Secretary of UASU-Egerton Chapter, dated 9th December 2025. 4.The Claimant/Applicant avers that the union filed a Memorandum of Claim challenging the Respondents’ failure to remit pension contributions under the applicable CBAs. 5.The Claimant/Applicant explains that at the time of filing, the union lacked complete and verified details of the unremitted funds, but subsequent documentation from the 1st Interested Party revealed further information necessitating amendment of the claim. 6.The Claimant/Applicant emphasizes that the amendment is essential to reflect the accurate position of the pension arrears, ensure fair adjudication, and prevent prejudice to the Claimant, while noting that the Respondents will suffer no injustice if the amendment is allowed. Respondent’s grounds of opposition 7.The Respondent opposed the application vide a grounds of opposition dated 30th January 2026 on the following grounds that:1.The application is incurably defective, misconceived, and an abuse of the court process.2.The application has been brought after an inordinate and unexplained delay, the suit having been filed in the year 2023, and no sufficient or reasonable explanation has been offered to justify the late amendment3.The Claimant has not demonstrated due diligence, as the alleged unremitted pension contributions were matters within the Claimant’s knowledge or could with reasonable effort have been ascertained at the time of filing the suit.4.The Claimant’s assertion that the Respondent failed to disclose complete and accurate pension records is misleading, as disclosure obligations do not absolve a litigant from pleading their case with precision and certainty at inception.5.The proposed amendment fundamentally alters the character, scope and quantum of the claim, thereby introducing a new cause of action disguised as an amendment.6.Allowing the amendment at this stage will occasion grave prejudice to the Respondents, including necessitating fresh responses, and possibly additional witnesses; and undermining the Respondent’s legitimate expectation of finality in litigation.7.The application offends the principles of expeditious disposal of disputes as enshrined under Article 159(2)(b) of the Constitution, section 3 of the Employment and Labour Relations Court Act, and Rule 3(1) of the ELRC (Procedure) Rules, 20168.The Claimant is attempting to fill gaps in their case after the lapse of time; contrary to established principles that amendments should not be used to patch up weak or negligent pleadings.9.The Claimant has not annexed any cogent or verifiable evidence to demonstrate the alleged newly discovered pension discrepancies, rendering the application speculative and prejudicial.10.The application is brought in bad faith, solely aimed at re-engineering the claim to the detriment of the Respondent rather than advancing the ends of justice11.The interests of justice, fairness and procedural certainty demand that the application be dismissed with costs12.The instant application has no merit whatsoever. 8.Parties were directed to put in their respective written submissions. Claimant/Applicant’s submissions 9.The Claimant/Applicant submitted that amendments to pleadings may be permitted at any stage before judgment, provided the legal threshold for amendment is met. Such amendments must help the court clarify the real issues between the parties, be made without undue delay, and not prejudice the opposing party. The governing principles require that an amendment should not introduce new or inconsistent causes of action, must be made promptly, should not affect vested interests or accrued rights, and must avoid causing injustice or prejudice to the other side. 10.In Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] KECA 345 (KLR), the Court of Appeal stated as follows:“The law on amendment of pleadings...was summarized by this court, quoting from Bullen and Leake & Jacob’s Precedents of Pleadings – 12th Edition, in the case of Joseph Ochieng & 2 others v First National Bank of Chicago, Civil Appeal No. 149 of 1991, as follows:“The ratio that emerges out of what was quoted from the said book is that the powers of the court to allow amendment is to determine the true substantive merits of the case; amendments should be timeously applied for, power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment sought to be made should be allowed if made in good faith provided costs can compensate the other side, that the proposed amendment must be immaterial or useless or merely technical, that is the proposed amendment introduce a new case or new grounds of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action.” 11.The Claimant/Applicant also relied on the case of Institute for Social Accountability & Another v Parliament of Kenya & 2 others; Commission for the Implementation of the Constitution [2014] KEHC 7356 (KLR), the court held as follows:“The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue, no new or inconsistent cause of action is introduced, and no vested interest or accrued legal right is affected and that the amendment can be allowed without an injustice to the other side.” 12.The Claimant/Applicant submitted that the rationale for amendment of pleadings is to enable the court to effectively determine the real issues in controversy between the parties, focusing on the substantive merits rather than procedural form. As stated in Nyamode Ochieng Nyamogo v Kenya Posts & Telecommunication Corporation [2007] KEHC 3222 (KLR), the court stated that the object of amendment is to ensure litigation proceeds on the true state of facts and the actual relief sought. The Claimant/Applicant argued that its prayers are justified, given that as of 2023, the unremitted pension stood at Kshs.1,343,644,512/=, which has since escalated to Kshs.3,087,243,543/= due to the Respondent’s continued failure to remit deductions from employees’ salaries, thereby warranting the court’s intervention through amendment to reflect the current factual position. 13.The Claimant/Applicant submitted that it be granted leave to amend the Memorandum of Claim to accurately reflect the correct figure of the unremitted pension, thereby ensuring the ends of justice and proper adjudication of the matter. The 1st Respondent’s persistent failure to remit the 10% pension contributions deducted from employees has gravely infringed upon the rights of the Claimant’s/Applicant’s members to access their rightful benefits upon cessation of service, occasioning substantial injustice. The proposed amendment does not introduce a new cause of action but merely seeks to rectify the total unremitted pension amount. It is therefore submitted that the amendment is non-prejudicial to the Respondent and serves the interest of justice, warranting this Honourable Court’s approval of the application. 14.The Claimant/Applicant submitted that no prejudice shall be occasioned to the Respondent should the application for amendment be allowed, as they retain the right to amend their defence and respond accordingly. The Respondents have not demonstrated any specific prejudice that would arise beyond what can be compensated monetarily, and the Claimant/Applicant is capable of meeting such costs. Conversely, refusal of the amendment would gravely prejudice the Claimant/Applicant, who would be unable to prosecute the matter on the true state of facts, thereby relying on a false hypothesis. The proposed amendment is made bona fide, does not alter the substance of the dispute, and merely corrects the amount of unremitted pension. Allowing the application would promote the expeditious and just determination of the real issues in line with the overriding objectives of the Civil Procedure Act and the judicial process. 15.The Claimant/Applicant relied on the case of Utalii Transport Company Limited & 3 Others v Nic Bank Limited & Another [2014] KEHC 7255 (KLR), where the court held as follows:“Whereas there is no precise measure of what amounts to inordinate delay, and whereas what amounts to inordinate delay with differ from case to case depending on the circumstance of each case; the subject matter of the case; the nature of the case, the explanation given for the delay; and so on and so forth, nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is ordinate and therefore, inexcusable. On applying the court’s mind on the delay, caution is advised for courts not to take the word “inordinate” in its dictionary meaning, but in the sense of excessive as compared to normality.” 16.The Claimant/Applicant submitted that the present application for amendment was filed without undue delay, as the issue in dispute remains a continuing wrong committed by the Respondents. The application is therefore timely and justified. It merely seeks to rectify the total unremitted pension to facilitate the proper determination of the suit. 17.Accordingly, the Claimant/Applicant prays that this Honourable Court grant the amendment sought and that the costs of this application be in the cause. Respondents’ submissions 18.The Respondents argued that the Claimant/Applicant’s application for leave to amend the memorandum of claim is legally untenable, procedurally improper, and brought in bad faith. The Respondents contend that the proposed amendment introduces new causes of action and substantially alters the nature of the suit, which was filed in 2023, without any satisfactory explanation for the delay of nearly two years. In Eastern Bakery v Castelino [1958] EA 461, the Respondents emphasize that amendments should only be allowed if they can be made without injustice to the other side, and that injustice arises when prejudice cannot be compensated by costs. The Respondents further relied on St Patricks Hill School Ltd v Bank of Africa Kenya Ltd [2018] KEHC 4886 (KLR) eKLR, where Nyakundi J held that courts should not permit amendments inconsistent with original pleadings or those that alter the nature of the case. 19.Additionally, the Respondents relied on Daniel Ngetich & Another v K-Rep Bank Limited [2013] KEHC 2702 (KLR), which held that amendments should only be allowed when they do not cause injustice or irreparable loss and are necessary for determining the real issues in controversy. The Respondents also relied on Elijah Kipngeno Arap Bii v Kenya Commercial Bank Ltd(Supra), where the Court of Appeal stated that amendments introducing new causes of action or made late without satisfactory explanation ought to be disallowed. The Respondents further relied on Nyaga v Langfields Systems Ltd & Another [2024] KEELRC 13514 (KLR), which reiterated that undue delay may justify refusal of leave to amend, and Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] KECA 367 (KLR), which outlined that amendments should not cause prejudice, undue delay, or injustice. 20.In conclusion, the Respondents submit that the Claimant/Applicant’s proposed amendment introduces expanded factual and legal grounds on pension remittances not contained in the original pleadings, would require fresh evidence, and unfairly prejudice them. The Respondents urged the court to dismiss the application with costs, citing John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] KEHC 6789 (KLR), where the court held that “litigation must come to an end, as endless amendments defeat the overriding objective.” Analysis and determination 21.The court has considered the application, supporting affidavit, grounds of opposition, and the rival submissions by both counsels. The issue for determination by this court is whether the court should allow the Claimant to amend his claim. 22.The court reiterates the famous case of amendment as mentioned earlier in this ruling in Central Kenya Ltd v Trust Bank Ltd & 5 Others (Supra), where the Court of Appeal held as follows:“It is also trite law that as far as possible a litigant should plead the whole of the claim which he is entitled to make in respect of his cause of action. Otherwise, the court will not later permit him to reopen the same subject of litigation (see O.II rule 1 of the Civil Procedure Rule) only because they have, from negligence, inadvatence or accident, omitted that part of their case. Amendment of pleadings and joinder of parties is meant to obviate this. Hence the guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs (See, Beoco Ltd v. Alfa Laval Co. Ltd [1994]4 ALL ER. 464).” 23.In Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited(supra), the Court of Appeal cited the case of Joseph Ochieng & 2 others v First National Bank of Chicago, Civil Appeal No. 149 of 1991, quoting Bullen and Leake & Jacob's Precedents of Pleading stating that courts have wide discretion to allow amendments to pleadings, provided they serve the substantive merits of the case. Amendments should be sought promptly, but may be permitted at any stage, even on appeal if made in good faith and if any inconvenience to the other party can be compensated by costs. However, amendments must not be trivial, immaterial, or purely technical. They may introduce new claims or defences, but only if they do not fundamentally alter the character of the case in a way that would be better pursued as a fresh action. Importantly, amendments cannot be used to reframe a case so as to deprive the opposing party of their right to rely on statutory limitation. 24.In this instant case, the Claimant/Applicant is seeking an amendment to its Memorandum of claim to correct arithmetic errors of unremitted pension from Kshs.1,343,644,512/=, which has since escalated to Kshs.3,087,243,543/= due to the Respondent’s continued failure to remit deductions from employees’ salaries, thereby warranting the court’s intervention through amendment to reflect the current factual position. The Respondent, on the other hand, argued that the proposed amendment introduces new causes of action and substantially alters the nature of the suit, which was filed in 2023, without any satisfactory explanation for the delay of nearly two years. 25.The court is persuaded the amendment proposed by the Claimant/Applicant does not raise any new cause of action by merely being arithmetically incorrect and seeking to correct the same. In Kenya Union of Commercial, Food & Allied Workers v Ruchu Gacharage Farmers Co-operative Society Ltd [2022] KEELRC 13542 (KLR), the court held as follows:“Having considered the draft amended defence annexed to the motion, and the circumstances of the case before the court, I am satisfied that the amendment sought should be allowed. It does not introduce a new defence or replace the original defence. It is only seeking to correct arithmetical errors on the terminal dues payable to the grievants, according to the respondent, taking into account part payments made.” 26.The Respondent submit that the Claimant’s prayer is misconceived and an abuse of the court process. They aver that the Claimant has not explained why they never got the pension documents earlier. The Claimant’s averment is that he got the records late from Egerton University Retirement Benefits office.The court is convinced the explanation by the Claimant as to this prayer for amendment at this time is reasonable. The Respondent will suffer no prejudice as he can respond to the amended claim and will have opportunity to file their submissions after the hearing. 27.Numerous case laws denote wide discretion to courts to allow amendments of pleadings in order to determine the real controversy between the Parties.In the case of Institute For Social Accountability & Another v Parliament of Kenya And 3 Others (2014) eKLR court held: -“The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced, and no vested interest or accrued legal right is affected and that the amendment can be allowed without an injustice to the other side.” 28.Flowing from the foregoing, the court finds that the Claimant’s application is merited and is granted. The following are the courts directions:a.The Claimant/Applicant is granted leave to file its amended memorandum of claim within 7 days from the delivery of this ruling.b.The Respondent will have corresponding leave to file its amended response to the amended memorandum of claim within 7 days upon service of the amended memorandum of claim.The parties will then take a hearing date without undue delay. 29.Costs of the application to be in the cause.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 22ND DAY OF MAY, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE