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ELRCAllowedNot stated in the judgment

Florence Achieng Asetto v Faulu Microfinance Bank Kenya Limited [2021] KEELRC 1401 (KLR)

Employment and Labour Relations Court
11 February 2021
1,598 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed Faulu Microfinance Bank to amend its defence and counterclaim over a former employee's staff loan, confirming such loans are employment benefits.

What this practically means

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Executive summary

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The respondent, Faulu Microfinance Bank Kenya Limited, brought an undated application under sections 1A, 1B and 3A of the Civil Procedure Act and Orders 17 and 18 of the Civil Procedure Rules seeking leave to amend its Response to the amended Memorandum of Claim and to file a Counterclaim against the claimant, a former employee. The respondent averred that the claimant obtained a loan of Kshs.5,400,000 during her employment on staff rates, and that after termination she failed to service it despite a ruling of 21st March, 2018 directing that she continue servicing it at the staff rate of 9%. The claimant opposed, arguing inordinate delay of about two years, that the amendments would substitute the cause of action by introducing a purely commercial loan dispute into an unfair termination claim, and that the application was designed to delay the hearing. The court held that amendments in the ELRC are governed by Rule 14 of the ELRC (Procedure) Rules, 2016, not the Civil Procedure Act; pleadings had closed on 17th December, 2018, so leave was required. Applying the principle that amendments should be freely allowed before hearing absent injustice, and holding that a staff loan granted on favourable rates is an employment benefit that cannot be extricated from the employment relationship, the court allowed the application. It ordered the respondent to file and serve the Amended Response within 14 days, the claimant to reply within 14 days, pleadings to close in 30 days, and costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court should grant the respondent leave to amend its Response to the amended Memorandum of Claim and to file a Counterclaim after closure of pleadings

Key legal issues

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01

Correct procedural basis for amending pleadings in the ELRC

Holding

Applications to amend pleadings in the ELRC are governed by Rule 14 of the ELRC (Procedure) Rules, 2016, not the Civil Procedure Act and Rules relied on by the respondent.

Reasoning

The respondent had anchored its application on sections 1A, 1B and 3A of the Civil Procedure Act and Orders 17 and 18 of the Civil Procedure Rules. The court held that amendments before this court are governed by the ELRC (Procedure) Rules, 2016, specifically Rule 14(6), which permits amendment after close of pleadings only with leave of the court. The application, though mis-anchored, was treated as seeking such leave.

p. 2
02

Whether leave to amend and file a counterclaim should be granted after closure of pleadings

Holding

Leave was granted because hearing had not commenced and the claimant would suffer no prejudice, being able to reply to the amended response.

Reasoning

Pleadings closed on 17th December, 2018 when hearing directions issued, so the amendment required leave. Applying the principle that amendments should be freely allowed before hearing where no injustice results, and noting that hearing had not commenced and a fair chance to reply existed, the court found the application reasonable, within Rule 14, and non-prejudicial to the claimant.

p. 3
03

Whether the loan dispute is severable from the employment relationship

Holding

A staff loan granted on favourable staff rates is an employment benefit that cannot be detached from the employment relationship.

Reasoning

The court held that where a loan is granted to an employee on terms and rates favourable to the workforce, it is a benefit subject to the employment, unlike a commercial loan. The loan due arose out of a work benefit and cannot change merely because there is a loan agreement. Section 19(1)(g) and (h) of the Employment Act, 2007 permits deductions for repayment of loans advanced by the employer.

p. 2

Legal principles established

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  • Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other party can be compensated by costs.
  • Employment benefits enjoyed by an employee, including a staff loan granted on favourable rates, cannot be extricated from the employment relationship and urged separately.

Court orders

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  1. 1.The respondent shall file and serve the Amended Response within 14 days
  2. 2.Upon service the claimant shall reply thereto within 14 days
  3. 3.Pleadings close in 30 days
  4. 4.Costs shall be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 14

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The general rule on this subject is that amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other party can be compensated by costs.
p. 2principles governing amendment of pleadings
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.
p. 2Court of Appeal test for amendments (Central Kenya Limited v Trust Bank Limited)
Where an employee enjoys a loan in the course of employment and the same is granted on terms and conditions applicable to employees and on rates which are favourable to the entire workforce by the employer, such is a benefit subject to the employment.
p. 2staff loans as employment benefits
In this case, hearing has not commenced, the leave sought to amend pleadings is found reasonable and within the provisions of Rule 14 and this shall not prejudice the claimant as there is a fair chance to reply to the Amended Response as shall be found necessary.
p. 3discretion to allow amendment after closure of pleadings
a. The respondent shall file and serve the Amended Response within 14 days; b. Upon service the claimant shall reply thereto within 14 days; c. Pleadings close in 30 days; and d. costs shall be in the cause.
p. 3final orders

Issues in the judgment

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minor

The application is described as undated, so the application date cannot be confirmed; the judgment also alternately refers to an application dated 16th August, 2017 and one filed on 17th August, 2017.

minor

The case number of the main suit is not stated anywhere in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Florence Achieng Asetto v Faulu Microfinance Bank Kenya Limited [2021] KEELRC 1401 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1401/eng@2021-02-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.