Ndihokubwayo v Alliance for a Green Revolution in Africa & another (Employment and Labour Relations Cause 277 of 2018) [2024] KEELRC 2492 (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 leave should be granted to amend the Memorandum of Claim dated 5th March, 2018 after the close of pleadings
- 2.Whether the proposed amendments introduce new causes of action, including claims barred under section 90 of the Employment Act
- 3.Whether the application was made in bad faith or would prejudice the Respondents given the delay of 6 years
- 4.Whether the supporting affidavit sworn by Counsel on record was defective for containing contentious matters of fact
Key legal issues
#Whether the proposed amendments introduced new causes of action barred by limitation
The amendments did not introduce new causes of action; they made the existing reliefs specific within the same employment relationship
The court examined the draft Amended Memorandum of Claim and found the amendments sought to make remedies more specific and to plead with specificity the entitlements originally claimed in general form, all arising within the same employment relationship. It found no bad faith or new causes of action. The limitation objection under section 90 of the Employment Act therefore did not defeat the application.
Whether the 6-year delay and the fact that hearing had not commenced affected the application
Delay alone was not fatal; since hearing had not started, no prejudice would be suffered by the Respondents who retain the right to respond
While noting the Claimant took six years to seek amendment, the court held that the hearing had not yet commenced, so the Respondents would suffer no prejudice. The overriding considerations were whether the amendments were necessary for determining the real questions in controversy and whether the delay caused compensable prejudice. The Respondents retain a corresponding right to amend under rule 14(6).
Whether the supporting affidavit sworn by Counsel was fatally defective
It was not defective; counsel may depone to matters of fact that are not contentious
The Respondents argued the affidavit of counsel contained contentious matters of fact. Relying on Kanyotta Holdings Ltd v Kenya Pipeline Company Ltd, the court held an advocate may depone on issues of fact provided they are not contentious, and found the matters deponed to were not contentious. The objection was rejected.
Legal principles established
#- Amendments may be allowed at any stage of the proceedings provided they are made in good faith and do not cause prejudice or injustice that cannot be compensated by costs
- Neither the length of the delay nor the length of proposed amendments is by itself sufficient ground to decline leave to amend
- An advocate may swear a supporting affidavit on matters of fact provided those matters are not contentious
Court orders
#- 1.Leave granted to the applicant to file and serve the amended statement of claim together with the supporting documents within 21 days of the ruling
- 2.The respondent at liberty to file and serve an amended response, if necessary, within a similar period after service
- 3.Costs shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya 2010 and Rule 14(6) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Filing of the amended Memorandum of Claim within seven days as sought in the application
The court granted leave but allowed 21 days instead of the 7 days sought; no other relief was refused
Costs
Costs shall be in the cause.
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.
In the foregoing circumstances and in the interest of justice the court allows the amendments sought by the applicant and hereby grants leave to the applicant to file and serve the amended statement of claim together with the supporting documents within 21 days of this ruling.
Costs shall be in the cause.
The general rule is that an amendment should not create injustice to the other party which cannot be compensated by way of costs. In the same vein, amendments are necessary so as to enable the court to determine the real question in controversy.
Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit.
Courts and the rules governing them should not be geared towards impeding fair trial but should be enablers of fair trial.
Issues in the judgment
#The judgment inconsistently describes the moving party as both 'Appellant' and 'Claimant/Applicant' although no appeal is before the court
The presiding judge signs as 'PRESIDING JUDGE-APPEALS DIVISION' while the matter is an interlocutory application in a first-instance claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndihokubwayo v Alliance for a Green Revolution in Africa & another (Employment and Labour Relations Cause 277 of 2018) [2024] KEELRC 2492 (KLR)", Case Analysis (2024). Application dated 12th March, 2024 in suit commenced by Memorandum of Claim dated 5th March, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2492/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.