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Court of AppealAllowedCivil Appeal No. 261 of 2014 (application by Motion dated 30th March 2017)· [2018] KECA 813 (KLR)

Governors Ballon Safaris Limited v Skyship Company Limited & another [2018] KECA 813 (KLR)

Court of Appeal of Kenya
16 February 2018
1,338 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a company to add extra grounds to its appeal, ruling that honest mistakes and prompt action matter more than technical perfection.

What this practically means

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Executive summary

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This is a single-judge interlocutory ruling of the Court of Appeal at Nairobi delivered by M'inoti, JA, on 16th February 2018, in an application by Governors Ballon Safaris Limited for leave to amend the memorandum of appeal in Civil Appeal No. 261 of 2014. The underlying suit, filed in 2008 in the High Court at Nairobi, claimed damages against Skyship Company Ltd for inducing the County Council of Transmara to breach a contract granting the applicant exclusive rights to operate hot air balloon services in the Masai Mara. The suit was struck out for want of prosecution by Mabeya, J. in a ruling dated 22nd November 2013, and the applicant appealed. On the application, filed on 30th March 2017 after counsel realised on the eve of the appeal hearing that the memorandum of appeal omitted several grounds, the Court allowed leave to amend. Applying rule 44(1) of the Court of Appeal Rules and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, the Court held that the amendment introduced no new points not before the High Court, would occasion the respondents no prejudice since they would have a full opportunity to respond, and that the delay was neither inordinate nor unexplained. The Court also emphasised that the applicant's suit had been terminated without a hearing on merit, making it important to allow it to agitate all grievances. The motion was allowed and costs were awarded in the appeal. The main appeal remains to be heard; this ruling does not disturb the High Court's decision.

Key legal issues

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01

Amendment of a memorandum of appeal

Holding

Leave to amend the memorandum of appeal was granted where the amendment raised no new points not before the High Court, caused no prejudice to respondents, and was necessary for the proper determination of all issues in the appeal.

Reasoning

The Court exercised its discretion under rule 44(1) of the Court of Appeal Rules judiciously. It noted the suit had been struck out for want of prosecution without a hearing on merit, so the appellant should be able to agitate all grievances. Counsel candidly admitted inadvertence, and respondents had a full opportunity to respond. The overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act also favoured granting the application.

p. 2
02

Whether the delay in seeking amendment was inordinate

Holding

The delay was not inordinate or unexplained: counsel realised the need for amendment when the appeal was called out and applied two weeks before the hearing date.

Reasoning

The appeal was first listed for 25th April 2017. Counsel explained that he realised the need for the amendments when getting up for the appeal and promptly filed the application on 30th March 2017, two weeks before the scheduled hearing date. The Court accepted this explanation and declined to treat the delay as inordinate or unexplained, refusing the respondents' submissions based on lack of vigilance.

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03

Prejudice to the respondents

Holding

The proposed amendments would not occasion the respondents prejudice as they would have a full opportunity to respond to the appeal.

Reasoning

The Court found no real risk of prejudice. The respondents did not file grounds of opposition or replying affidavits; the amendments only impugned the learned judge's evaluation of the evidence and exercise of discretion, matters already within the appeal; and the respondents would have a full opportunity to address the amended grounds when the appeal was heard.

p. 2

Legal principles established

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  • The power to amend any document under rule 44(1) of the Court of Appeal Rules is discretionary and must be exercised judiciously, on the basis of reason rather than arbitrarily, and subject to the interests and dictates of justice.
  • A memorandum of appeal is a document amenable to amendment.
  • The Court has a discretion to admit a new point on appeal, but it must be exercised sparingly, the evidence must be on record, the new point must not raise disputes of fact and must not be at variance with the case decided by the court below.

Court orders

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  1. 1.The motion dated 30th March 2017 was allowed
  2. 2.The applicant's memorandum of appeal was amended accordingly
  3. 3.Costs of the application to be in the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 44(1)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B

Cases cited (6)

  • Kanawal Sarjit Singh Dhim v. Keshavji Jivraj Shah
    [2010] eKLR
  • Uhuru Highway Development Ltd v. Central Bank of Kenya
    [2002] 1 EA 314
  • Nathan Muhatia Pala t/a Muhatia Pala Auctioneers & Another v Joseph Nyaga Karingi
    [2013] eKLR
  • Securicor (Kenya) Limited v. EA Drapers Ltd & Another
    [1987] KLR 338
  • Douglas Mbugua Mungai v. Harrison Munyi
    CA. No. Nai. 167 of 2010
  • E. Muriu Kamau & Another v. National Bank of Kenya Ltd.
    [2009] eKLR
On appeal from
High Court of Kenya at Nairobi
Civil Suit No. 461 of 2008 (ruling of 22nd November 2013)
Jurisdiction invoked
Rule 44(1) of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act (inherent power and overriding objective)

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, "Governors Ballon Safaris Limited v Skyship Company Limited & another [2018] KECA 813 (KLR)", Case Analysis (2018). Civil Appeal No. 261 of 2014 (application by Motion dated 30th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/813/eng@2018-02-16

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