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Court of AppealDismissedNairobi Civil Appeal Number 192 of 2008 (Motion on notice dated 17th July 2018)· [2018] KECA 263 (KLR)

Uchumi Supermarkets Ltd & another v Sidhi Investments Ltd [2018] KECA 263 (KLR)

Court of Appeal of Kenya
12 October 2018
3,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal (Makhandia, JA) delivered at Nairobi on 12th October 2018 in Nairobi Civil Appeal Number 192 of 2008, determining a motion dated 17th July 2018 seeking leave to amend the memorandum of appeal lodged on 8th September 2008 by adding a new ground: that the High Court (Osiemo, J) erred in making a finding on an unpleaded issue when it declined to strike out the respondent's suit. The underlying dispute concerns a bid for two parcels of land along Thika Superhighway, an offer of Kshs 118,000,000 accepted by letter, payment of a 10% deposit, and a second advertisement for sale of the properties, which spawned a suit for injunction and specific performance. The High Court had found a constructive trust arising under the proviso to section 3(3) of the Law of Contract Act and refused to strike out the suit. The applicants argued the new ground was inadvertently omitted and would enable the appellate court to rule on whether correspondence could constitute a contract sufficient to dispose of an interest in land. The respondent opposed, citing a 10-year unexplained delay, six prior appearances before the appellate court without any request to amend, risk of ambush, and the interlocutory nature of the appeal. The court held that the rule 44(1) amendment power is discretionary and must be exercised judiciously; the proposed ground was too vague; the delay of 10 years was unexplained and abusive; and the question whether correspondence amounts to a contract must be determined by the High Court on evidence. The application was dismissed with costs.

Key legal issues

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01

Exercise of discretion to amend a memorandum of appeal

Holding

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

Reasoning

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.

p. 3
02

Unexplained delay and good faith in amendment applications

Holding

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

Reasoning

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.

p. 3
03

Appellate court making findings on unpleaded or untried issues

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application seeking leave to amend the memorandum of appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Law of Contract Actsection 3(3)
  • Court of Appeal Rulesrule 104(a)
  • Court of Appeal Rulesrule 44
  • Court of Appeal Rulesrule 44(1)

Cases cited (8)

  • R v AG & Another
    (2004) eKLR
  • Kenya Hotels Limited v Oriental Commercial Bank Limited
    [2018] eKLR
  • Kanawal Sarjit Singh Dhim v. Keshavji Jivraj Shah
    [2010] eKLR
  • Uhuru Highway Development Ltd v. Central Bank of Kenya
    [2002] 1 EA 314
  • George Gikubu Mbuthia v Consolidated Bank of Kenya Ltd & Another
    (2016) eKLR
  • Kyalo v Bayusuf Brothers Ltd
    Civil Appeal No. 38 of 1983
  • Teachers Service Commission v Kenya National Union of Teachers & 3 Others
    (2015) eKLR
  • Yusuf Gitau Abdallah v Building Center (K) Ltd & 4 Ors
    (2014) eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.