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Court of AppealDismissedCivil Appeal No. 139 of 2011

Sidhi Investments Limited v Uchumi Supermarkets Limited & another [2019] KECA 843 (KLR)

Court of Appeal of Kenya
22 March 2019
547 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 confirmed you cannot amend court documents to sneak in findings that are themselves being appealed.

What this practically means

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Executive summary

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The Appellant, Sidhi Investments Limited, applied by notice dated 17th June 2009 to further amend its Amended Plaint dated 12th April 2005, primarily to plead constructive trust in conformity with a ruling of Osiemo J in Civil Case No. 311 of 2005. The Deputy Registrar, exercising powers under Order 48 rule 5(1)C of the repealed Civil Procedure Rules, allowed the amendment, finding no prejudice to the Respondents. On appeal by chamber summons, Mwera J of the High Court set aside the Deputy Registrar's decision on 28th June 2010, directing the parties to await the decision of the Court of Appeal in Civil Appeal No. 192 of 2008, which concerned Osiemo J's ruling and which was heard at the same time as this appeal. The Appellant's appeal to the Court of Appeal listed twelve grounds. The Court (Waki, Warsame and Murgor JJ.A) agreed with the High Court that the proposed amendment was an attempt to incorporate disputed findings into the pleadings so as to sidestep the ruling that was itself the subject of a pending appeal, describing it as an attempt to 'steal a march'. Finding no basis to interfere with the High Court's decision, the Court dismissed the appeal with costs to the Respondents. The judgment binds subordinate courts and High Court judges: a litigant may not amend pleadings to pre-empt or circumvent findings under appeal in a superior court.

Questions the Court framed

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

  1. 1.Whether the High Court correctly set aside the Deputy Registrar's decision allowing the Appellant to amend its Amended Plaint to plead constructive trust
  2. 2.Whether the proposed amendment was an attempt to sidestep the pending decision of the Court of Appeal in Civil Appeal No. 192 of 2008

Key legal issues

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01

Whether the Appellant could amend its plaint to plead constructive trust based on a ruling whose findings were already under appeal

Holding

The amendment was properly set aside because it sought to incorporate findings that were the subject of a pending appeal, giving the Appellant an unfair advantage.

Reasoning

The Deputy Registrar had allowed the amendment on the footing that no prejudice would result, but the High Court on appeal set the decision aside to put the parties on an equal footing. The Court of Appeal agreed with the trial judge: the amendment was designed to answer and pre-empt the ruling of Osiemo J which was itself the subject of Civil Appeal No. 192 of 2008, heard alongside this appeal. Allowing such an amendment would let a party sidestep the pending appellate process and steal a march on the other side.

p. 1
02

Whether the Court of Appeal should interfere with the High Court's discretionary decision setting aside the Deputy Registrar's order

Holding

No basis was found to interfere with the High Court's discretionary decision, which was affirmed.

Reasoning

The appeal was against a discretionary decision of the High Court, which had concluded that the parties should await the outcome of the pending appeal in Civil Appeal No. 192 of 2008 or other court orders before proceeding on the amendment. Since the amendment was aimed at incorporating disputed findings under appeal, the appellate court found the High Court's exercise of discretion unimpeachable and declined to disturb it.

p. 1

Legal principles established

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  • A party may not, through amendment of pleadings, incorporate into its case disputed findings that are the subject of an appeal pending before a superior court, so as to pre-empt or sidestep that appeal.
  • Where an amendment is intended to gain an unfair advantage in pending litigation, the appellate court will not interfere with the decision of the High Court refusing or setting it aside.

Court orders

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  1. 1.Appeal dismissed with costs to the Respondents

The bench

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

majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
HC Civil Case No. 311 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court (Court of Appeal Act; appellate jurisdiction over the High Court)

Relief refused

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Appeal against the High Court ruling setting aside the Deputy Registrar's decision allowing amendment of the plaint

The proposed amendment was an attempt to steal a march in a dispute pending before the Court of Appeal in Civil Appeal No. 192 of 2008

p. 1

Costs

Appeal dismissed with costs to the Respondents.

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.

the trial Judge directed that “the parties should await the decision of the Court of Appeal in the pending appeal or other court orders before proceeding further on the aspect in question”
p. 1Direction to await pending appeal before proceeding with amendment
In essence, the Appellant was making an attempt to incorporate the disputed findings of the Ruling in its pleadings which was meant to sidestep the decision, which was subject to Civil Appeal No. 192 of 2008.
p. 1Amendment as an attempt to sidestep pending appellate proceedings
In the premises, we find no basis to interfere with the decision of the High Court and accordingly we dismiss this appeal with costs to the Respondents.
p. 1Disposition - appeal dismissed with costs
Orders accordingly.
p. 1Final orders

Issues in the judgment

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minor

The judgment references Justice Osiemo's ruling 'delivered on 19th October 2007' while also describing the amended plaint as dated 12th April 2005 'in conformity with Justice Osiemo's ruling', and elsewhere describes the pleading as 'meant to answer' Osiemo J's decision; the temporal sequence of the rulings and pleadings is not fully explained in the judgment.

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, "Sidhi Investments Limited v Uchumi Supermarkets Limited & another [2019] KECA 843 (KLR)", Case Analysis (2019). Civil Appeal No. 139 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/843/eng@2019-03-22

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