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IndustrialPartially AllowedNot stated in judgment (suit filed 26/3/2013)

Kenya Hotels & Allied Workers Union v Office Restaurant Ltd (Cause 98 of 2012) [2014] KEIC 97 (KLR)

Industrial Court of Kenya
19 December 2014
1,031 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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The claimant, a trade union suing on behalf of grievant Douglas Konga, filed a Notice of Motion dated 26/9/2014 seeking leave to enjoin Ofice Restaurant Limited, Joshua Makiya Aroni and Penina Chepkemoi Aroni as respondents to the main suit, and leave to amend the claim per a draft annexed to the Motion. The respondent opposed the Motion and filed a Preliminary Objection seeking its striking out with costs as frivolous, bad in law and lacking merits. The background traces the suit filed 26/3/2013 for separation dues on redundancy; the respondent's limitation Preliminary Objection dismissed on 26/7/2013 (upheld on appeal by the Court of Appeal on 18/7/2014); successive amendments of the claim; and a consent order of 26/2/2014 producing a further amendment that substituted a new respondent, prompting the present Motion. The court framed two issues: whether the Motion was proper in law and whether it had merits. On procedure, the court held that under Rules 14(6) and 16(1) of the Industrial Court (Procedure) Rules, leave to amend is sought by Notice of Motion supported by affidavit, with no limitation period or limit on the number of amendments. On merits, applying the settled principles that amendments and joinder should be freely allowed at any stage absent uncompensable prejudice, and noting the respondent filed no affidavit in response (a P.O not being evidence), the court allowed the Motion subject to conditions: the amendment was not to follow the annexed draft but settled principles of amending pleadings. The court allowed 14 days to file and serve the amended claim, granted the respondent similar leave to amend its response, dismissed the Preliminary Objection, and ordered each party to bear their own costs.

Questions the Court framed

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

  1. 1.Whether the claimant's Notice of Motion is proper in law (procedure and form)
  2. 2.Whether the Notice of Motion has merits (leave to join new parties and amend the claim)

Key legal issues

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01

Procedure and form of the Notice of Motion

Holding

The Motion was properly before the court and in the right form under Rules 14(6) and 16(1) of the Industrial Court (Procedure) Rules.

Reasoning

Rule 14(6) permits amendment of pleadings with leave; Rule 16(1) requires interlocutory applications by Motion with grounds and a supporting affidavit. No limitation period or restriction on the number of amendments is prescribed, so the Motion was properly in form.

p. 2
02

Merits of the joinder and amendment

Holding

Leave to amend the claim and enjoin the new parties was granted because no prejudice to the respondent was demonstrated; the amendment corrects a defect and brings on board a necessary party.

Reasoning

It is trite that a litigant should plead the whole claim and enjoin all necessary defendants against whom a decree may be passed. Amendments should be freely allowed at any stage absent uncompensable prejudice. The respondent filed no affidavit and the P.O is not evidence, so no prejudice was shown. New defendants will have their opportunity to defend.

p. 3

Legal principles established

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  • All interlocutory applications in the Industrial Court must be brought by way of Notice of Motion supported by affidavit, and there is no limitation period or limit on the number of amendments of pleadings.
  • Leave to amend pleadings and join parties should be freely allowed at any stage of the proceedings provided no prejudice or injustice not compensable in costs is caused to the other party.
  • A Preliminary Objection unsupported by any affidavit is not evidence of prejudice.

Court orders

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  1. 1.Leave granted to the claimant to amend the claim and enjoin the new parties, not as per the draft claim annexed to the Motion but according to well settled legal principles of amending pleadings in Kenya
  2. 2.Leave granted for 14 days to file and serve the amended claim
  3. 3.Similar leave given to the respondent to amend the response
  4. 4.The Preliminary Objection is dismissed
  5. 5.Each party to bear his or her own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Industrial Court (Procedure) Rules, Rule 14(6) and Rule 16(1)

Relief refused

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Leave to amend the claim strictly in terms of the draft claim annexed to the Motion

The court granted the amendment only in accordance with settled principles for amending pleadings in Kenya, not per the attached draft

p. 3

Costs

Each party to bear his or her own costs.

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 also trite that leave for amendment of pleadings and joinder of parties should freely be allowed and at any stage of the proceedings, provided that such amendment or joinder will not result in prejudice or injustice to the other party which cannot be compensated for in costs.
p. 2Principles for amendment of pleadings and joinder of parties
The P.O raised is not evidence.
p. 3Preliminary objections are not evidence
For reasons stated above the Motion is allowed subject to the conditions stated above. The leave granted is for 14 days to file and serve the amended claimant. Similar leave is given to the respondent to amend response. In that respect the P.O is dismissed. Each party to bear his or her own costs.
p. 3Disposition and final orders

Issues in the judgment

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minor

The judgment inconsistently refers to the respondent as 'The Ofice Restaurant' and 'M/s The ofice Restaurant Ltd' (apparent typographical spelling variations), and the suit/case number is not stated in the judgment.

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, "Kenya Hotels & Allied Workers Union v Office Restaurant Ltd (Cause 98 of 2012) [2014] KEIC 97 (KLR)", Case Analysis (2014). Not stated in judgment (suit filed 26/3/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/97/eng@2014-12-19

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