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Court of AppealAllowedCivil Appeal (Application) No. 30 of 2018

Nakumatt Holdings Limited & another v Ideal Locations Limited [2018] KECA 514 (KLR)

Court of Appeal
7 June 2018
1,131 words in judgment
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The bottom line

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Kenya's Court of Appeal let Nakumatt add new grounds to its appeal, confirming courts freely allow amendments that help resolve the real dispute.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) in Civil Appeal (Application) No. 30 of 2018, arising from a ruling of the Environment and Land Court at Mombasa (Yano, J.) dated 5th March 2018 that ordered the eviction of Nakumatt Holdings Limited from premises on L.R No. 14407 & 16988, Section 1/Mainland/North. An appeal against that ruling was pending. The appellants applied by notice dated 24th April 2018 for leave to amend the memorandum of appeal to add a ground premised on stay orders issued in Nairobi High Court Insolvency Cause No. 10 of 2017 (Re: Nakumatt Holdings Limited), and for leave to file a further supplementary record of appeal incorporating those orders. The respondent opposed, arguing that the amendment sought to raise an issue never raised before the ELC, that the additional evidence did not meet the requisite threshold, and that the amendments would prejudice it. Applying the settled principles on amendment of pleadings - drawn from Eastern Bakery v Castelino and Halsbury's Laws of England, and the guidelines in Mulla's Code of Civil Procedure - the court held that amendments facilitating determination of the real controversy should be freely allowed, that the merits of a proposed amendment should not be considered at that stage, and that the proposed ground would facilitate determination of the appeal. The application was allowed in its entirety, with the amended memorandum and supplementary record to be filed within five days, and costs of the application to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellants should be granted leave to amend the memorandum of appeal to introduce an additional ground of appeal concerning the stay orders in the insolvency proceedings
  2. 2.Whether the appellants should be granted leave to file a further supplementary record of appeal incorporating the orders issued in Nairobi High Court Insolvency Cause No. 10 of 2017

Key legal issues

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01

Whether leave to amend a memorandum of appeal should be granted to introduce an additional ground of appeal

Holding

Leave was granted because the proposed amendment would facilitate the determination of the pending appeal and none of the recognized objections to amendment were made out.

Reasoning

The court applied the settled principles governing amendments, including that amendments necessary for the determination of the real controversy should be allowed and that the court should not weigh the merits of the proposed amendment. It found that the new ground, premised on stay orders issued in the appellants' insolvency proceedings, would assist the appeal's determination, and that no prejudice incapable of compensation by costs was demonstrated by the respondent.

p. 2
02

Whether leave to file a further supplementary record of appeal should be granted

Holding

Leave was granted for the appellants to file a supplementary record incorporating the orders issued in the insolvency cause.

Reasoning

Having found the amendment appropriate, the court saw no reason to refuse the accompanying supplementary record, since the orders in Nairobi High Court Insolvency Cause No. 10 of 2017 were considered relevant to the appeal. The respondent's objections that the orders were not before the ELC and would change the substance of the case did not persuade the court to refuse the leave sought.

p. 2

Legal principles established

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  • Amendments to pleadings ought to be allowed freely where they facilitate the determination of the issue in dispute
  • A court should not consider the merits of a proposed amendment when deciding whether to allow or reject it; the merits fall for determination at the hearing

Court orders

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  1. 1.The application dated 24th April 2018 is allowed in its entirety
  2. 2.Leave granted to the appellants to amend the memorandum of appeal to include the proposed additional ground of appeal
  3. 3.Leave granted to the appellants to file a further supplementary record of appeal incorporating the orders issued in the insolvency suit
  4. 4.The appellants directed to file the amended memorandum of appeal and the supplementary record within 5 days of the ruling
  5. 5.Costs of the application to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Environment and Land Court at Mombasa
E.L.C Case No. 400 of 2017
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an interlocutory application in a pending appeal from the Environment and Land Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

As a general rule amendments to pleadings ought to be allowed freely where such amendments facilitate the determination of the issue in dispute.
p. 2General rule on amendments
Applying those principles to the application at hand, we are persuaded that the proposed amendment will facilitate the determination of the appeal.
p. 2Application of amendment principles
Accordingly, the application has merit and is hereby allowed. For avoidance of doubt we direct the appellants to file the amended memorandum appeal and the supplementary record within 5 days of this ruling.
p. 2Final orders and disposition

Issues in the judgment

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minor

The title of the appealFrom case number appears inconsistent with the suit described in the body: the coram cites E.L.C Case No. 400 of 2017 while the ruling describes the suit as E.L.C Case No. 10 of 2017

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nakumatt Holdings Limited & another v Ideal Locations Limited [2018] KECA 514 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 30 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/514/eng@2018-06-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.