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ELRCDismissedNot stated in judgment· [2023] KEELRC 821 (KLR)

Amalgamated Union of Kenya Metal Workers v Shankar Electronics Limited (Cause 663 of 2020) [2023] KEELRC 821 (KLR)

Employment and Labour Relations Court
28 March 2023
MMM Mbaru
1,864 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Employment Court in Mombasa ruled that you cannot use amendments to sneak entirely new claims into an old case.

What this practically means

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Executive summary

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The claimant union, through its General Secretary Rose Omamo, filed a notice of application dated August 17, 2022 seeking leave to file a Further Amended Statement of Claim. The claim was originally filed on December 18, 2020 over a threatened redundancy; after leave granted on June 2, 2022, the claimant filed an Amended Statement of Claim on the unlawful redundancy and unfair termination. The claimant now sought to introduce claims for salary deductions/pay cuts from 2020 to 2022 totalling over Kshs 3.7 million plus interest at 14% per month, alleging the respondent failed to implement the CBA of September 30, 2019 which provided for wage increases of 6% in each of 2020 and 2021. The respondent opposed through grounds of opposition and submissions, arguing piecemeal litigation, absence of a draft amendment initially attached, abuse of court process, and prejudice. The court framed the issue under Rule 14 of the ELRC (Procedure) Rules, 2016, holding that amendment serves better particulars and clarification, not the introduction of fresh claims or revival of matters settled or overtaken by events. Since the claimant admitted the redundancy issue was resolved and the new CBA claims would change the entire character of the claim, the application was dismissed with costs to the respondent.

Key legal issues

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01

Whether leave should be granted to file a Further Amended Statement of Claim

Holding

The application was dismissed; the proposed amendments sought to introduce fresh claims (CBA salary arrears and pay cuts) that would change the entire character of the claim, which had already been amended once and whose original subject (intended redundancy) had been overtaken by events.

Reasoning

Rule 14 of the ELRC (Procedure) Rules, 2016 confers discretion to allow amendment, but only for adequate particulars or clarification. Amendment is not a route to bring new and fresh claims or to revive matters settled or overtaken by events, as that would prejudice respondents by returning them to court every time a new matter arises under the same employment relationship. Allowing such mutation of claims each year would result in great injustice. The general principle favouring free amendment is subject to the rider that the discretion must be exercised judicially and in line with the rules.

p. 3

Legal principles established

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  • Amendment of pleadings is not meant to introduce new and fresh claims but to allow better particulars, clarification and good cause; a settled or overtaken claim cannot be revived by amendment
  • The right to amend pleadings at any stage is not absolute and depends on judicial discretion and the criteria in the court rules

Court orders

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  1. 1.Application dated August 17, 2022 dismissed with costs to the respondent
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 14(6) and (7)

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, "Amalgamated Union of Kenya Metal Workers v Shankar Electronics Limited (Cause 663 of 2020) [2023] KEELRC 821 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/821/eng@2023-03-28

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