Shine IT Limited v Mwero (Appeal E033 of 2021) [2024] KEELRC 1401 (KLR)
The bottom line
#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 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.Whether the trial court denied the appellant a fair chance to respond to the application for amendment of the Memorandum of Claim
- 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
#Determination of a substantive application on a mention date
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.
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.
Right to be heard on an amendment application under Rules 14(6) and 17 ELRC Procedure Rules, 2016
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.
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.
Amendment introducing a new party and potential statute-bar
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.
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.
Legal principles established
#- 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
#- 1.Ruling delivered on 12 May 2021 in Mombasa CMELRC No. 366 of 2019 is set aside
- 2.The appellant's Grounds of Opposition expunged from the record are adopted as properly filed
- 3.The appellant is allowed 14 days to file a Replying Affidavit in reply to the application dated 9 May 2021
- 4.The order of consolidation of suits is set aside and each file is to be heard separately and on the merits
- 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.Costs to abide by the outcome of the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
To expunge the Grounds of Opposition was punitive and not justified.
Accordingly, the appeal is hereby allowed and the following orders are issued;
The Order of consolidation of suits is hereby set aside and each file is to be heard separately and on the merits;
For these proceedings, the costs to abide by the outcome of the main suit.
Issues in the judgment
#Judgment states the respondent was 'employed by the appellant, Shine It Limited on 2{{^}} January 1999' - a typographical corruption of the date.
The order allows a Replying Affidavit in reply to 'the application dated 9 May 2021' although the application throughout is dated 9 April 2021.
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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.