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ELRCAllowedNot stated in the judgment

Thomas Nyakundi & 22 others v Kenyatta University [2022] KEELRC 194 (KLR)

Employment and Labour Relations Court
31 March 2022
SRSTELLA RUTTO
1,339 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Stella Rutto, J) delivered on 31 March 2022 on the Respondent/Applicant's Notice of Application dated 30 November 2021 seeking leave to amend its Statement of Response in an unfair termination claim. The Applicant, invoking Articles 50 and 159 of the Constitution and Rule 14(6) of the ELRC Procedure Rules (2016), argued that the amendments were necessary to plead its defence completely and would not prejudice the Claimants, who could be compensated by costs. The Claimants opposed through the Replying Affidavit of the 1st Claimant, Thomas Nyakundi Masieka, describing the application as brought in bad faith, a delaying tactic, and made after an inexcusable four-year delay. In written submissions the Applicant relied on Halsbury's Laws of England, Eastern Bakery v Castelino, Central Kenya Ltd v Trust Bank, and Gladys N. Muchena v Agakhan Education Services; the Claimants relied on Ochieng v First National Bank of Chicago, Mwakio v Kenya Commercial Bank, Daniel Ngetich v K-Rep Bank, and Kassam v Bank of Baroda. The Court framed one issue: whether the application was merited. Applying the Court of Appeal's principles in Joseph Ochieng & 2 others v First National Bank of Chicago, it held that amendments may be sought at any stage before judgment and should generally be allowed if in good faith, with costs compensating the other side. The proposed amendments went to the nature of the employment relationship, the core issue, and hearing had not yet commenced. The Court allowed the application, granting leave to amend, with corresponding leave for the Claimants to reply, and ordered costs to abide the outcome of the main suit.

Questions the Court framed

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

  1. 1.Whether the Application for leave to amend the Statement of Response is merited

Key legal issues

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01

Whether leave to amend pleadings should be granted at this stage of the proceedings

Holding

Application allowed; the amendments are relevant to the core dispute and the Claimants can be compensated by costs and have corresponding leave to reply

Reasoning

The Court applied the Court of Appeal principles in the Aquiline Agencies case: amendments serve to determine the true substantive merits, may be sought at any stage, and should generally be allowed if in good faith with costs compensating the other side. The proposed amendments set out the nature of the employment relationship, the heart of the dispute, and hearing had not yet taken off.

p. 2
02

Whether the Claimants would suffer prejudice if the amendment is allowed

Holding

No; the Applicant would suffer more prejudice if the application were denied, since the Claimants have a corresponding right to reply

Reasoning

The Court weighed hardship on both sides. Denial would deprive the Applicant of the chance to advance its factual case; allowance merely triggers the Claimants' corresponding right under the Rules to amend and reply, and costs can compensate them.

p. 2

Legal principles established

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  • As a general rule, however late, an amendment should be allowed if made in good faith and costs can compensate the other side

Court orders

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  1. 1.The Respondent/Applicant is granted leave to amend its Statement of Response
  2. 2.The amended Statement of Response to be filed and served upon the Claimants within 7 days from the date of the Ruling
  3. 3.The Claimants are granted corresponding leave to amend, file and serve their reply to the amended Statement of Response within 14 days from the date of service
  4. 4.The costs of the Application shall abide the outcome of the main suit

The bench

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

SR
majority

Wrote the judgment

Jurisdiction invoked
Articles 50 and 159 of the Constitution and Rule 14(6) of the Employment and Labour Relations Court Procedure Rules (2016)

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.

a) The Respondent/Applicant is granted leave to amend its Statement of Response.
p. 2final orders - leave to amend
d) The costs of the Application shall abide the outcome of the main suit
p. 2final orders - costs
power to amend can be exercised by the Court at any stage of the proceedings
p. 2amendment of pleadings - timing
that as a general rule however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side
p. 2amendment of pleadings - general rule

Issues in the judgment

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minor

The names/case number of the parties and suit are not stated in the body of the ruling; only counsel and affidavits identify the parties

minor

Appearance section appears to mislabel the parties (Claimant's counsel listed as 'FOR THE RESPONDENT/CLAIMANT')

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, "Thomas Nyakundi & 22 others v Kenyatta University [2022] KEELRC 194 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/194/eng@2022-03-31

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