Governors Ballon Safaris Limited v Skyship Company Limited & another [2018] KECA 813 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Amendment of a memorandum of appeal
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.
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.
Whether the delay in seeking amendment was inordinate
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.
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.
Prejudice to the respondents
The proposed amendments would not occasion the respondents prejudice as they would have a full opportunity to respond to the appeal.
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.
Legal principles established
#- 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
#- 1.The motion dated 30th March 2017 was allowed
- 2.The applicant's memorandum of appeal was amended accordingly
- 3.Costs of the application to be in the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.