Peras Limited v Esso Kenya Limited
The bottom line
#Paying for goods under someone else's contract doesn't make you a party to it, and courts won't rescue late amendments that prejudice the other side.
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 Court of Appeal could interfere with the High Court's order striking out the appellant's plaint for want of privity of contract between the appellant and the respondent
- 2.Whether the learned Judge erred in refusing to allow the appellant to amend its plaint to substitute Janu as plaintiff
Key legal issues
#Privity of contract - whether Peras Limited was a party to the agreement
The agreement was between Esso Kenya Limited and Janu Govindji Chottalal personally; Peras Limited was not a party despite paying for goods and holding trade licences.
The letter of offer was addressed to 'Dear Mr. Janu' in answer to applications made in his personal capacity, and there was no evidence that Peras Limited signed the letter or the Operator's Agreement. Payment for goods, trade licences taken out by the appellant itself, and invoices addressed to Langata Service Station did not make the appellant a contracting party, as there was no evidence Langata Service Station was the same entity as Peras Limited.
Discretion to amend pleadings - whether the Judge erred in refusing the proposed amendment
The Judge was entitled to refuse the amendment sought only at the hearing in 1994, given the appellant's delay since 1988 and the prejudice to the respondent's limitation defence.
While a trial judge has a discretion to allow an amendment at any stage, even after a party closes its case, the appellant knew of the privity issue from the defence filed in March 1988 and did nothing until the hearing in November 1994. The amendment would have deprived the respondent of a possible limitation defence to any claim by Janu, so the exercise of discretion was perfectly justified.
Legal principles established
#- An appellate court will not interfere with a trial judge's exercise of discretion to allow or refuse an amendment unless it is shown that the discretion was wrongly exercised.
- Payment for goods supplied does not of itself make a party to a contract where the offer and acceptance were between other parties.
Court orders
#- 1.The appeal be and is hereby dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No 655 of 1988
- Jurisdiction invoked
- First appeal to the Court of Appeal against the decree of the High Court (statutory appellate jurisdiction; no specific constitutional or statutory provision quoted in the judgment)
Relief refused
#Interference with the High Court order striking out the plaint
The agreement was between the respondent and Janu Govindji Chottalal personally, not the appellant; there was no basis to interfere
Leave to amend the plaint to bring in Janu as plaintiff
The appellant delayed from 1988 until hearing in 1994, and the amendment would have deprived the respondent of a possible limitation defence
Costs
The appeal was dismissed with costs to the respondent.
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.
we do nor think that there is any basis upon which we can interfere with the learned Judge’s (Githinji J) order striking out the plaint filed by the appellant in the High Court
in deciding whether or not to allow an amendment a Judge is undoubtedly exercising a discretion and unless it can be shown that the discretion was wrongly exercised, this court would not be entitled to interfere
That being our view of the matter, this appeal fails and we order that it be and is hereby dismissed with costs.
Issues in the judgment
#Typographical errors in the judgment text, e.g. 'we do nor think' for 'we do not think' and 'issue of private of contract' for 'privity of contract'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peras Limited v Esso Kenya Limited", Case Analysis (1997). Civil Appeal 127 of 1996. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.