Masha v Kamyn Industries Limited [2026] KEELRC 14917 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS

COURT OF KENYA AT NAIROBI

APPEAL NO. E288 OF 2025

WILSON FONDO MASHA.……………..……………….……APPELLANT

VERSUS

KAMYN INDUSTRIES LIMITED.……....……….................RESPONDENT

(Being an appeal from the Ruling of Hon. M. Nabibya (SPM) in Thika MCELRC No. E039 of 2024 delivered on 2nd April 2025)

JUDGMENT

1. This appeal arises from the Ruling of the Trial Court delivered on 2nd April 2025, in which the Court struck out the Appellant's Amended Memorandum of Claim and Supplementary Witness Statement, both dated 30th January 2025, on the ground that they had been filed out of time and without leave of the court. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 4th August 2025, raising the following grounds:

(1) The Learned Trial Magistrate erred in law and in fact by exercising judicial discretion capriciously, whimsically, and on principles unknown to law.

(2) The Learned Magistrate erred in law and fact, misdirected herself, failed to give due consideration to the legal principles applicable when amending pleadings and thus arrived at a wrong conclusion.

(3) The Learned Trial Magistrate failed to appreciate that the Appellant's Amended Memorandum of Claim and Supplementary Witness Statement, both dated 30th January 2025, had been filed before the close of pleadings in accordance with Rule 34 of the Employment and Labour Relations Court (Procedure) Rules, 2024.

(4) The Learned Trial Magistrate failed to properly consider the legal principles governing the closure of pleadings, particularly Rule 29(4) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which provides that pleadings close fourteen days after service of the Reply to the Memorandum of Response.

(5) The Learned Trial Magistrate failed to appreciate that the Appellant filed and served the amended pleadings on 7th February 2025 and subsequently filed a Reply to the Memorandum of Response on 19th February 2025, such that the fourteen-day period would only have lapsed on 5th March 2025.

(6) The Learned Trial Magistrate erred in law and facts and misdirected herself in finding that the Appellant had not sought for leave to amend his pleadings when such leave was not necessary as pleadings had not closed.

(7) The Learned Trial Magistrate erred in finding that the amended pleadings were filed out of time despite the pleadings having been filed during the pre-trial stage and before the close of pleadings.

(8) The Learned Trial Magistrate erred and misdirected herself by failing to find and appreciate that she referred the matter for mediation at the pre-trial stage before the close of pleadings hence the Appellant had the right to Amend his pleadings.

(9) The Learned Trial Magistrate erred in law and fact and misdirected herself by striking out the Appellant's Amended Memorandum of Claim together with his Supplementary Witness Statement without considering his evidence and filed pleadings on whether the Amended pleadings were properly on record.

(10) The Learned Trial Magistrate erred in law and fact and misdirected herself by failing to find and appreciate that the Respondent would not be prejudiced if the Appellant's Amended Memorandum of Claim and Supplementary Witness Statement were to be admitted on record since he could be granted corresponding leave to file his Amended Memorandum of Response before the matter could be certified ready for hearing,

(11) The Learned Trial Magistrate erred in law and fact by considering extraneous issues that were neither pleaded, canvassed or proven by the Respondent during the pretrial conference.

(12) The Learned Trial Magistrate failed to appreciate that the prejudice occasioned to the Appellant by striking out the Amended Memorandum of Claim and Supplementary without taking into account the former's evidence could not be cured by an award of costs.

(13) The Learned Trial Magistrate erred in law and misdirected herself by failing to exercise judicial authority on known legal principles and judiciously thus rendering a biased, unfair, unjust and inconsistent decision/Ruling.

2. On the strength of the foregoing grounds, the Appellant urges this Court to allow the appeal, set aside the Ruling delivered on 2nd April 2025, and substitute it with an order admitting the Amended Memorandum of Claim and Supplementary Witness Statement. The Appellant further prays that the matter be remitted to a different Magistrate for hearing and determination, and that the costs of the appeal be awarded to it.

3. Although directions were issued on 8th May 2026 requiring the parties to file written submissions, neither party complied with those directions.

Disposition

4. This appeal arises out of a preliminary issue, principally, the striking out of an amended memorandum of claim and supplementary witness statement. The impugned pleadings were filed in the following sequence. The reply to defence was filed on 19th February 2024. The amended claim is dated 30th January 2025 and was filed on 7th February 2025. This was manifestly out of time without leave. The Learned Magistrate did not err as leave had to be obtained before the document could be filed. The striking out was proper and I so hold. Appeal is dismissed with costs to the Respondent.

It is so ordered.

Dated and delivered at Kisumu this 3rd day of November 2026

Nzioki wa Makau, MCIArb.

JUDGE