Gichora v Kuku Foods (K) Limited (Cause E687 of 2023) [2026] KEELRC 171 (KLR) (29 January 2026) (Ruling)

Gichora v Kuku Foods (K) Limited (Cause E687 of 2023) [2026] KEELRC 171 (KLR) (29 January 2026) (Ruling) Neutral citation: [2026] KEELRC 171 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E687 of 2023 ON Makau, J January 29, 2026 Between Geoffrey Makana Gichora Claimant and Kuku Foods (K) Limited Respondent Ruling Introduction 1.This ruling relates to the Notice of Motion dated 27th October 2025 filed by the Respondent, brought under the inherent jurisdiction of the Court, Rule 7(3)(a), 34 and 47 of the Employment and Labour Relations Court (Procedure) Rules, 2024, Sections 1A, 1B and 3A of the [Civil Procedure Act](/akn/ke/act/1924/3), Order 2 Rule 15(b), (c), and (d), Order 8 Rule 7 of the Civil Procedure Rules, 2010. The motion basically seeks the following orders:-a.That the Amended Memorandum of Claim dated 19th September 2025 filed by the Claimant be struck out.b.That the costs of the application be provided for. 2.The Application is premised on the grounds that the said Amended Memorandum of Claim is fatally defective, having been filed in contravention of mandatory procedural rules, is unintelligible, prejudicial to the Respondent, and constitutes an abuse of the court process. The application is supported by the affidavit of Sylvia Githogori, sworn on 27th October 2025 and it was opposed by the Claimant through his Grounds of Opposition dated 27th October 2025 and his Written Submissions dated 17th November 2025. The Respondent filed its Submissions dated 11th November 2025 in support of the Motion. Background and Procedural Context 5.The Claimant instituted this suit vide a Memorandum of Claim dated 13th April 2021, challenging his summary dismissal from employment by the Respondent on 25th August 2020. The matter proceeded through the pre-trial stages. 6.On 23rd September 2025, a date initially fixed for hearing, the Claimant sought and was granted leave by this Court (Hon. Lady Justice Linnet Ndolo) to amend his Memorandum of Claim. He was also directed to serve the amended pleading upon the Respondent, who was granted fourteen (14) days to respond. A mention was scheduled for 16th October 2025. 7.By the mention date of 16th October 2025, the Claimant had not served the amended pleading and the Court extended the time for service by a further forty-eight (48) hours. On 17th October 2025, the Claimant served upon the Respondent with the impugned Amended Memorandum of Claim dated 19th September 2025, together with a supplementary bundle of documents. However, upon perusal it became clear that there was no verifying affidavit in respect of the amended pleading. 8.The Respondent submitted that the amended pleading was fatally defective and ought to be struck out with costs. However, the claimant was of a contrary view and urged that the verifying affidavit was only required with respect to originating pleading. 9.I have carefully considered the application, the supporting affidavit, Grounds of Opposition and the written submissions filed by both parties. I have also perused the court record to ascertain the procedural history. The issues falling for determination are:-a.Whether the Claimant's Amended Memorandum of Claim dated 19th September 2025 is defective.b.Whether the alleged defects in the Amended Memorandum of Claim is fatal and warrants striking out of the impugned pleading. Analysis and Determination Whether the amended Pleading is defective 11.The Respondent's attack on the competency of the amended pleading is twofold: first, on the non-compliance with the prescribed format for showing amendments; and second, on the absence of a contemporaneous verifying affidavit. 12.As regards the mode of amendments, Rule 34 of the Employment and Labour Relations Court Procedure Rules which permits a party to amend pleadings is silent on how the amendment should to be done. Consequently, I have sought guidance from Order 8 Rule 7 (2) of the Civil Procedure Rules, 2010 which provides as follows:-“(2)All amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words.” 11.The purpose of the above rule is to enable the opposite party and the Court to see, at a glance, the evolution of the case. It distinguishes between what has been abandoned, what has been added, and what remains unchanged. This clarity is essential for preparing a defence, for judicial case management, and for maintaining an accurate court record. 12.Having personally perused the Amended Memorandum of Claim, I am satisfied that indeed the amended pleading does not comply with Order 8 Rule 7, on page 1, 5 and 6 as there are lines striking out the several sentences and also underlining the same. The instruction from the said rule is that a party should strike out what is deleted and then underline what is added in red. It is also not possible to tell whether prayer 1 and 3 in the amended Claim have been deleted or not. 13.As regards the issue of lack of a Verifying Affidavit, it is clear from the record that the Claimant's Amended Memorandum of Claim dated 19th September 2025 was filed without any accompanying Verifying Affidavit. This observation is fortified by the fact that the Verifying Affidavit on record is dated 17th October 2025 meaning that it was drawn almost a month after the amended pleading. 14.It is also not clear whether the claimant paid the filing fees for the amended pleading and the annexed documents as the record only shows payment for the verifying affidavit, that is 17th October, 2025 of Ksh. 75 made on 27th October 2025. I say so because, when the matter was mentioned in court on 16th October 2025, the Claimant’s counsel told the court that he had not yet paid for the amended pleading, and the court gave him 48 hours to comply with the leave order of 23rd September 2025. 15.Rule 7(3) of the Employment and Labour Relations Court (Procedure) Rules, 2024 is unequivocal:“(3)A statement of claim filed under sub-rule (1) shall be accompanied by-(a)an affidavit verifying the correctness of the facts in the statement of claim.” 11.The above provision does not refer to the Amended Statement of Claim but the originating pleading. The word “shall” in the above rule is similarly used in order 4 Rule 1 of the Civil Procedure Rules 2010 which states that:-“(2)The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above” 11.The use of the word “shall” in sub-rule (2) above connote mandatory instructions, and therefore failure to comply renders the pleading defective. It is however, not clear whether the same requirement applies to amended pleadings. In my considered view, it would be a good practice for amended Statement of Claims and amended Counter-claims to be accompanied by a Verifying Affidavit to verify any change in the pleaded facts. Accordingly, I find that the impugned amended Statement of Claim herein is defective for lack of an accompanying verifying affidavit as required under Rule 7(3) of the Employment and Labour Relations Court Procedure Rules. 12.This Court aligns itself with the reasoning in Nyumu & 3 others v Muema & 21 others [2004] eKLR and Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 13 others (2019) eKLR, which emphasize that where leave of the court is required or where specific timelines are set, filing documents outside such permission or timelines renders them irregular. A verifying affidavit is not an accessory to a pleading; it is its integral, validating component. To serve an amended claim without its verifying affidavit is to serve an incomplete and, in a technical sense, an invalid pleading. Whether the defect in the pleading is fatal 11.The Applicant contended that the said defects are fatal and the amended Claimant should be struck out but the Claimant is of a contrary view. I have read through a legion of decisions on the matter of verifying affidavit in support of plaints and they all lean towards giving leave to rectify the mistake as opposed to striking out the pleadings. 12.I must emphasize that, the finding of procedural non-compliance does not automatically dictate the remedy of striking out. This Court must assess the nature and effect of the defects. Striking out is a drastic remedy, employed sparingly and only in the clearest of cases where a pleading is incurably bad. The Court's ultimate duty is to do substantive justice. 13.The authorities cited by the Claimant, such as Eastern Bakery v. Castellino (1958) EA 461, underscore the courts' traditional liberal approach to amendments, allowing them provided any prejudice can be compensated in costs. 14.In Shashikant C Patel v Oriental Commercial Bank (2005) eKLR, Maraga J (as he then was) observed that:-“We should never lose sight of the fact that the rules of procedure, though they may be followed, are the hand handmaids of justice. They should not be given a pedantic interpretation which at the end of the day denies parties justice.” 11.Having considered the facts of this case I do not think that the said defects rendered the pleadings fatally defective. I agree with many other decisions from the courts that a court of law should do its best to sustain proceedings rather than to strike them out. The lack of a verifying affidavit can be cured by filing one with the leave of the court. The use of the word “may” in sub-rule (6) of Order 4 Rule connote that the court has a discretion whether or not to strike out a pleading it states:-“(6)(6) The court may of its own motion or on the application by the plaintiff or the defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2) (3)(4) and (5) of this rule.” 11.Likewise, the defect of the mode of amendment by striking out the deleted parts and underlining the added parts would easily be cured by a further amendment. The amendment would also clarify the prayers sought after the amendment. 12.The critical question is whether granting leave to correct the procedural mistake would occasion prejudice on the Respondent that cannot be compensated by an award of costs. I find that no such prejudice will be suffered because the Respondent can be awarded costs and corresponding leave to amend its Pleadings also. On the other hand I find that striking out the pleading might occasion more prejudice to the Claimant because mounting a fresh suit may be barred by the limitation of time. 13.In the circumstances, I decline to strike out the impugned pleading and instead I grant the claimant leave of 14 days to rectify the procedural blunders by a further amendment. The Respondent will have a corresponding leave of 14 days to amend its pleadings upon service by the Claimant. The Respondent is also awarded throw-away costs of Kshs 6000. 14.In making the above directions, I appreciate that the Court has inherent and explicit powers to manage its processes to achieve justice. Besides, Order 8 Rule 5(1) of the Civil Procedure Rules allows the Court, suo motu, to order amendments for purposes of determining the real question in controversy. Further Article 159 (2)(d) provides that Courts shall administer justice without undue regard to technicalities. Conclusion 30.I have found that the Claimant's Amended Memorandum of Claim dated 19th September 2025 is defective and irregular for the reasons highlighted. I have further found that the defects are not fatal and the court has discretion not strike out the same. Consequently, and in the interest of justice, I make the following orders:-a.The Claimant is awarded leave of 14 days of today to regularize the defects in Amended Memorandum of Claim dated 19th September 2025 by a further amendment in strict compliance with the lawb.The Respondent is awarded corresponding leave to amend its pleadings within 14 days of service by the Claimant.c.The Claimant is condemned to pay the Respondent/Applicant thrown away costs of Kshs.6000 within 21 days of today. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 29 TH DAY OF JANUARY, 2026.****ONESMUS MAKAU****JUDGE** Appearance:Njiru for the Claimant/ApplicantSalim for the Respondent