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ELRCAllowedMombasa CMELRC No. 366 of 2019 (appeal against Ruling of 12 May 2021)

Shine IT Limited v Mwero (Appeal E033 of 2021) [2024] KEELRC 1401 (KLR)

Employment and Labour Relations Court
23 May 2024
2,249 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 first appeal to the Employment and Labour Relations Court at Mombasa against a ruling delivered on 12 May 2021 in Mombasa CMELRC No. 366 of 2019. The respondent (claimant below), a former employee who retired on 1 January 2015 and filed a claim for terminal dues in 2019, applied on 9 April 2021 - after both parties had closed their cases - for leave to amend his Memorandum of Claim and introduce Shine It Africa as a second respondent. The appellant filed Grounds of Opposition dated 6 May 2021, but the trial magistrate expunged them as filed out of time and granted the application as unopposed. The appellant appealed, contending the ruling was made on a technicality, denied it a fair hearing, and that the amendment introduced a fresh, statute-barred claim contrary to Sections 89 and 90 of the Employment Act. M. Mbarũ J held that the 12 May 2021 date was a mention, not a hearing date, and that substantive orders should not issue on a mention; that the appellant had a right to be served and heard under Rules 14(6) and 17 of the ELRC Procedure Rules, 2016; and that expunging the Grounds of Opposition was punitive and unjustified. The court allowed the appeal, set aside the ruling, reinstated the Grounds of Opposition, allowed the appellant 14 days to file a Replying Affidavit, set aside the consolidation of suits, and remitted the file with a direction that the question of law in paragraph (7) of the Memorandum of Response (limitation) be determined first. Costs were left 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 trial court erred in expunging the appellant's Grounds of Opposition and deeming the application dated 9 April 2021 unopposed and granted at a mention date
  2. 2.Whether the trial court denied the appellant a fair chance to respond to the application for amendment of the Memorandum of Claim
  3. 3.Whether the proposed amendment introducing a second respondent amounted to a fresh, statute-barred claim contrary to Sections 89 and 90 of the Employment Act

Key legal issues

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01

Determination of a substantive application on a mention date

Holding

The trial court erred by granting the amendment application and expunging the Grounds of Opposition on 12 May 2021, which was a mention date and not a scheduled hearing date.

Reasoning

The 12 May 2021 date was set for mention to confirm whether the respondent had filed the application for leave to amend and to allocate a hearing date. Authorities consistently hold that substantive matters cannot be determined on a mention date, and that a matter fixed for mention cannot lawfully be disposed of then, as this deprives parties of a fair chance to be heard.

p. 4
02

Right to be heard on an amendment application under Rules 14(6) and 17 ELRC Procedure Rules, 2016

Holding

The appellant had a right to be served with the application and to file a response; expunging its Grounds of Opposition was punitive and unjustified.

Reasoning

Rule 14(6) permits amendment applications but Rule 17 requires service and time to file Grounds of Opposition with a Replying Affidavit. It was not shown when the application was served. The magistrate ought to have allowed the appellant time to ventilate its response after the hearing had closed.

p. 4
03

Amendment introducing a new party and potential statute-bar

Holding

While amendments are freely allowable at any stage before judgment, an amendment should not constitute a new cause of action; the question of whether the joinder of Shine It Africa is time-barred under Sections 89 and 90 of the Employment Act is a question of law to be addressed first by the trial court.

Reasoning

The appellant pleaded in its Response that the claim contravened the Employment Act. The cause of action accrued on 1 January 2015 and the amendment was sought in 2021. Rather than determine the limitation issue on appeal, the court remitted the files to the trial court with directions that the question of law be addressed first, after unconsolidation.

p. 4

Legal principles established

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  • Substantive orders should not be issued on a mention date unless the parties agree, to protect procedural rules and ensure a fair hearing.
  • A respondent to an application has a right to be served and allowed time to file a response before the application is determined.
  • Amendments to pleadings should be freely allowed if they can be made without injustice to the other side.

Court orders

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  1. 1.Ruling delivered on 12 May 2021 in Mombasa CMELRC No. 366 of 2019 is set aside
  2. 2.The appellant's Grounds of Opposition expunged from the record are adopted as properly filed
  3. 3.The appellant is allowed 14 days to file a Replying Affidavit in reply to the application dated 9 May 2021
  4. 4.The order of consolidation of suits is set aside and each file is to be heard separately and on the merits
  5. 5.The file shall revert to the trial court and the first issue for determination shall be paragraph (7) of the Memorandum of Response dated 28 October 2019
  6. 6.Costs to abide by the outcome of the main suit

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. 366 of 2019
Jurisdiction invoked
First appellate jurisdiction over the ruling in Mombasa CMELRC No. 366 of 2019
Consolidated with
ELRC Cause No. 365/2019, ELRC Cause No. 368/2019

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.

It is settled law that during a mention date, no substantive orders should be issued.
p. 3Mention dates and substantive orders
To expunge the Grounds of Opposition was punitive and not justified.
p. 4Fair hearing on amendment applications
Accordingly, the appeal is hereby allowed and the following orders are issued;
p. 5Disposition
The Order of consolidation of suits is hereby set aside and each file is to be heard separately and on the merits;
p. 5Final orders - deconsolidation
For these proceedings, the costs to abide by the outcome of the main suit.
p. 5Costs

Issues in the judgment

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minor

Judgment states the respondent was 'employed by the appellant, Shine It Limited on 2{{^}} January 1999' - a typographical corruption of the date.

minor

The order allows a Replying Affidavit in reply to 'the application dated 9 May 2021' although the application throughout is dated 9 April 2021.

minor

The judgment records hearing on 23 February 2021 with witnesses testifying and the case closed, yet also records the respondent testifying as 'the 4th claimant', and states hearing directions were allocated on 11 March 2023 while proceedings of 23 February 2021 are described earlier - chronology is inconsistent.

minor

Particulars of the claim state the respondent was employed as a cleaner from 2 January 1999, but the judgment later records employment 'in the year 2014' for Hamisi Komo.

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, "Shine IT Limited v Mwero (Appeal E033 of 2021) [2024] KEELRC 1401 (KLR)", Case Analysis (2024). Mombasa CMELRC No. 366 of 2019 (appeal against Ruling of 12 May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1401/eng@2024-05-23

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