Humphrey Nyaga Thomas & 25 others v Kenyatta University [2020] KEELRC 12 (KLR)
The bottom line
#Kenya's Employment Court refused to strike out an amended petition filed without leave, prioritising a fair hearing over procedural technicality but awarding costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Amended Petition filed without leave of court after the close of pleadings should be struck out and expunged from the record
- 2.Whether the filing of the Amended Petition without leave and on short service before the hearing prejudiced the respondent
Key legal issues
#Whether an amended petition filed after close of pleadings without leave must be struck out
The filing was irregular, being contrary to Rule 18 of the Mutunga Rules and Rules 7 and 14 of the ELRC (Procedure) Rules, 2016, but the omission was not fatal; the amended petition was admitted with costs and a right of reply to the respondent.
The court traced the general rule on amendments to Eastern Bakery v Castelino, that amendments should be freely allowed absent injustice compensable by costs. It read Rule 18 of the Mutunga Rules with Rules 7 and 14(6) of the ELRC Procedure Rules, 2016, confirming leave is required after close of pleadings. Although the petitioners breached this, the amended petition was served before the hearing, and the respondent could still reply within a reasonable time. Admitting it secured substantive justice and the right to be heard, with costs compensating the respondent.
Whether the respondent was prejudiced or ambushed by the late service of the amended petition
No lasting prejudice; the hearing was overtaken by events and the respondent was given a 14-day right of reply.
The respondent was served the amended petition together with the hearing notice 11 days before the hearing date and chose to file the striking-out application rather than a reply. The scheduled hearing of 16th November 2020 was adjourned and overtaken by events. The court found the respondent had a fair chance to see the amendments and would, upon being granted fourteen days to file an Amended Response, suffer no prejudice, with each party retaining a fair chance to urge its case.
Legal principles established
#- A party may amend pleadings before service or before the close of pleadings; after the close of pleadings, amendments may only be made with leave of the court
- Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, injustice being curable by costs
- Failure to obtain leave to amend after close of pleadings is not necessarily fatal where the amendment is served in time and the other party can be given a fair chance to respond
Court orders
#- 1.The Amended Petition is admitted on the record
- 2.The respondent is given 14 days to file an Amended Response to the Amended Petition
- 3.The respondent is awarded costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2016 (Mutunga Rules) - constitutional petition before the ELRC
Relief refused
#Striking out and expunging the Amended Petition dated 11th August, 2020 from the record
The omission to obtain leave was not fatal; the amended petition was filed and served before the hearing date and admitting it would secure substantive justice
Costs
Costs of the application awarded to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the application dated 12th November, 2020 is allowed to the extent that the Amended Petition is admitted on the record; the respondent is given 14 days to file Amended Response to the Amended Petition; the respondent is awarded costs of the application.
It will be sufficient, for purposes of the present case, to say that amendments to pleadings sought before the hearings 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.
A party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court.
In the interests of justice and to allow the court address the substantive issues and matters between the parties, the Amended Petition is herein admitted into the record and the respondent shall have fourteen (14) days right of reply
Issues in the judgment
#Case number and neutral citation are not stated in the judgment text provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Humphrey Nyaga Thomas & 25 others v Kenyatta University [2020] KEELRC 12 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/12/eng@2020-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.