Uchumi Supermarkets Ltd & another v Sidhi Investments Ltd [2018] KECA 263 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let parties add a new appeal ground after a 10-year unexplained delay, warning late amendments can abuse court process.
What this practically means
#Executive summary
#Key legal issues
#Exercise of discretion to amend a memorandum of appeal
Leave to amend is discretionary, not granted as of right; the applicants failed to lay a basis for the exercise of discretion in their favour given the vagueness of the proposed ground and the delay
The court relied on Kenya Hotels Limited v Oriental Commercial Bank, noting that the rule 44(1) power is discretionary and must be exercised judiciously. The proposed new ground was too general to enable the court to determine whether it went to the substance of the ruling, and the amendment was sought at the eleventh hour after the appeal had been pending about 3 years for hearing.
Unexplained delay and good faith in amendment applications
A 10-year unexplained delay in seeking amendment, first raised only on 10th July 2018 after multiple prior hearing dates, raises suspicion of bad faith and constitutes an abuse of process
Relying on Kyalo v Bayusuf Brothers Ltd, the court held that amendments must be brought within reasonable time, else they abuse process. Inadvertence alone cannot explain 10 years of delay, especially where the parties appeared before the appellate court on at least six prior occasions without the applicants raising amendment. The timing suggested the applicants sought to salvage or boost the pending High Court suit.
Appellate court making findings on unpleaded or untried issues
The appellate court declined to pronounce on whether correspondence between the parties could amount to a contract sufficient to dispose of an interest in land, as that question requires evidence at trial
The respondent argued the appeal was interlocutory and the appellate court could not make final findings of fact on a live issue pending before the High Court. The court agreed that the question whether correspondence constitutes a contract under section 3(3) of the Law of Contract Act can only be determined by the High Court upon taking evidence, and any appellate pronouncement would be prejudicial and premature.
Legal principles established
#- The power to amend a memorandum of appeal under rule 44(1) of the Court of Appeal Rules is discretionary and must be exercised judiciously and upon reason, not arbitrarily
- Amendments introducing a totally new ground of appeal not pleaded or canvassed before the trial court will not be readily allowed, and applications to amend must be brought within reasonable time
- A late amendment that advances a new ground after unexplained inordinate delay amounts to an abuse of the court process
Court orders
#- 1.The application seeking leave to amend the memorandum of appeal is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 104(a) and rule 44(1) of the Court of Appeal Rules - discretionary power to amend a memorandum of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Uchumi Supermarkets Ltd & another v Sidhi Investments Ltd [2018] KECA 263 (KLR)", Case Analysis (2018). Nairobi Civil Appeal Number 192 of 2008 (Motion on notice dated 17th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/263/eng@2018-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.