WJ Faulkner v Agricultural Development Corporation [1978] KECA 12 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that courts can allow late claim amendments and that delivery of goods can be proven by conduct, not just paperwork.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a ruling on an oral application for amendment made in the course of a trial gives rise to a separately appealable order or may only be challenged in the appeal against the decree
- 2.Whether the amendment substituting the years 1967 and 1968 for 1969 should have been allowed notwithstanding limitation
- 3.Whether the plaintiff proved delivery of the cattle so as to satisfy section 6 of the Sale of Goods Act absent a note or memorandum in writing
Key legal issues
#Appealability of an in-trial oral amendment ruling
Such a ruling is not an appealable order under section 75 of the Civil Procedure Act; it is properly a ground of appeal against the decree under section 76(1).
If amendment is sought by chamber summons it is an interlocutory order appealable with leave, and failure to appeal precludes later challenge. But that procedure is not exclusive: oral in-trial applications are not interlocutory proceedings, so treating their rulings as separately appealable would produce the inconvenience Sir Audley McKisack CJ warned against in DD Bawa Ltd v G S Didar Singh.
Amendment introducing a limitation-barred claim
The amendment was properly allowed because the defendant had advance notice within the limitation period and the new causes of action arose out of substantially the same facts.
Order VIA rule 3(2) permits amendment after limitation has expired if the court thinks just, and rule 3(5) allows a new cause of action arising from the same or substantially the same facts. The plaintiff's advocates' letter of 27 September 1971 warned of the intended amendment, so no prejudice or injustice was caused despite the death of the appellant's elder brother.
Proof of delivery under section 6 of the Sale of Goods Act
Absent a note or memorandum, the plaintiff proved delivery or part payment, and the trial judge's findings of fact were not shown to be wrong.
It was common ground no memorandum existed, so delivery or part payment had to be proved. Part payment of Shs 160,000 was made on one transaction of Shs 190,000; on the others invoices were sent and not objected to in writing, and evidence showed invoices were sent only after delivery. The defendant's oral objections were disbelieved; the judge found the defendant exploited confusion to avoid its obligations.
Legal principles established
#- A ruling on an oral application for amendment made in the course of a trial is not a separately appealable interlocutory order but may be challenged as a ground in the appeal against the judgment and decree.
- Under order VIA rule 3(2) and 3(5) of the Civil Procedure Rules, an amendment may be made after limitation has expired, even if it adds a new cause of action, if it arises out of the same or substantially the same facts.
- Amendments may be made at any stage of the proceedings, including at trial, orally.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Agreed with the judgment of Law JA and his conclusions, adding analysis of the 27 September 1971 letter showing the defendant had notice and specification of the proposed amendment well within limitation.
I have read the draft of the judgment prepared by Law JA and agreed with his conclusions.p. 2
Agreed with the judgment and orders of Law JA, commenting that the chamber summons omitted the 1967/1968 amendments which was somewhat misleading, but the defendant had ample warning via the 27 September 1971 letter.
I agree with the judgment of Law JA which I have had the benefit of reading in draft. I also agree with the orders he proposes.p. 3
- On appeal from
- High Court
- null
- Jurisdiction invoked
- Appeal to the Court of Appeal against the judgment and decree of the High Court (section 75 and section 76(1) of the Civil Procedure Act discussed in relation to appealability)
Relief refused
#Setting aside the amendment introducing the years 1967 and 1968
The defendant had notice well within limitation via the 27 September 1971 letter, so no prejudice or injustice arose
Reversal of the finding that the cattle were delivered
The trial judge's conclusion that delivery was made was supported by the evidence, including invoices sent only after delivery
Costs
Appeal dismissed with costs (costs to the respondent plaintiff)
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.
a ruling on an oral application for amendment made in the course of a trial is a matter appealable in an appeal against the judgment and decree in the suit, as was done here. The appeal on this point is accordingly competent.
an amendment may by order VIA, rule 3(2), be made although it is made after the period of limitation has expired, if the Court thinks just; and by rule 3(5) such an amendment may be made, even though it adds a new cause of action, if it arises out of the same or substantially the same facts.
Wambuzi and Law JJ A agreeing, the appeal is dismissed with costs.
Issues in the judgment
#The trial judge's marginal endorsement recorded the substituted years incorrectly as "1968 and 1969" instead of "1967 and 1968", an error the appellate judge verified with the trial judge himself.
The judgment does not state the case number of the suit or of this appeal, and the parties are identified only as plaintiff/defendant; the caption is not reproduced.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WJ Faulkner v Agricultural Development Corporation [1978] KECA 12 (KLR)", Case Analysis (1978). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/12/eng@1978-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.