Kenya Hotels & Allied Workers Union v Office Restaurant Ltd (Cause 98 of 2012) [2014] KEIC 97 (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 claimant's Notice of Motion is proper in law (procedure and form)
- 2.Whether the Notice of Motion has merits (leave to join new parties and amend the claim)
Key legal issues
#Procedure and form of the Notice of Motion
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.
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.
Merits of the joinder and amendment
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.
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.
Legal principles established
#- 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
#- 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.Leave granted for 14 days to file and serve the amended claim
- 3.Similar leave given to the respondent to amend the response
- 4.The Preliminary Objection is dismissed
- 5.Each party to bear his or her own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Industrial Court (Procedure) Rules, Rule 14(6) and Rule 16(1)
Relief refused
#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
Costs
Each party to bear his or her own costs.
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 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.
The P.O raised is 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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.