[2019] KECA 843 (KLR)
The Court of Appeal held that the appellant's attempt to amend its plaint to plead constructive trust was an effort to incorporate disputed findings from a ruling that was the subject of a pending appeal (Civil Appeal No. 192 of 2008). The court agreed with the High Court that allowing such an amendment would amount...
Source-derived case information.
- Citation
- [2019] KECA 843 (KLR)
- Parties
- Appellant: Sidhi Investments Limited; Respondent: Uchumi Supermarkets Limited; Respondent: Kasarani Mall Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 139 of 2011
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- J Wakiaga, MA Warsame, AK Murgor
- Legal Topics
- Amendment of Pleadings, Constructive Trust, Powers of Registrar, Appeals From Registrar, Prejudice in Amendment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sidhi Investments Limited
Appellant
Uchumi Supermarkets Limited
Respondent
Kasarani Mall Limited
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the High Court erred in setting aside the Deputy Registrar's order allowing amendment of the plaint.
- 2 Whether the appellant was entitled to amend its pleadings to plead constructive trust in light of a pending appeal.
- 3 Whether the amendment would prejudice the respondents or amount to sidestepping a pending appellate decision.
Ratio Decidendi
The Court of Appeal held that the appellant's attempt to amend its plaint to plead constructive trust was an effort to incorporate disputed findings from a ruling that was the subject of a pending appeal (Civil Appeal No. 192 of 2008). The court agreed with the High Court that allowing such an amendment would amount to the appellant gaining an unfair advantage in ongoing appellate proceedings and would prejudice the respondents. The court found no basis to interfere with the High Court's exercise of discretion in setting aside the Deputy Registrar's order, as the amendment was not merely procedural but would affect substantive rights in a matter still under appellate consideration. The...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: WAKI, WARSAME & MURGOR, JJ.A)
CIVIL APPEAL NO. 139 OF 2011
SIDHI INVESTMENTS LIMITED.....................................APPELLANT
VERSUS
UCHUMI SUPERMARKETS LIMITED................1STRESPONDENT
KASARANI MALL LIMITED................................2NDRESPONDENT
(Being an Appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Mwera, J.) delivered on the 28thday of June, 2010
in
HC Civil Case No. 311 of 2005)
**********************
JUDGMENT OF THE COURT
In an application dated 17th June 2009, the Appellant herein sought to amend its Amended Plaint dated 12th April 2005. The primary purpose was to plead the issue of constructive trust in conformity with Justice Osiemo’s ruling in Civil Case No. 311 of 2005 delivered on 19th October 2007. The said Application was heard by the Deputy Registrar, who allowed the prayers sought on the finding that no prejudice would result to the Respondent.
Being aggrieved, the Respondent filed an appeal in the High Court by way of a chamber summons dated 20th November 2009 under Order 48 rule (5)3 of the Civil Procedure Rules (repealed). The appeal was heard by Mwera J. (as he then was), who set aside the decision of the Deputy Registrar in order to ‘put each side on equal footing’. The trial Judge directed that “the parties should await the decision of the Courtof Appeal in the pending appeal or other court orders before proceeding further on the aspect in question”. That appeal is Civil Appeal No. 192 of 2008 which was heard at the same time with this appeal. It is this decision that triggered the current appeal to this Court.
The Appellant filed its Memorandum of Appeal dated 1st July 2009 against the High Court’s decision, listing twelve (12) grounds of appeal.
We are cognizant that the Deputy Registrar dealt with the application dated 17th June 2009 in exercise of the powers under Order 48 rule 5 (1) C of the Civil Procedure Rules(repealed). The said rule gave the Registrar powers to hear and determine inter alia, an application made under Order 6 A on amendments of pleadings.
The matter went on appeal against the said decision to the High Court, Mwera J. (as he was then) who dealt with the Application and found that the orders sought by the Appellant to re-amend the Plaint were meant to answer the decision made by Osiemo J in the appeal before us in Civil Appeal No. 192 of 2008; that there existed a constructive trust between the parties.
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.
We agree with Mwera J, that the attempt was intended to steal a march in a dispute pending in the Court of Appeal. In the premises, wefind no basis to interfere with the decision of the High Court and accordingly we dismiss this appeal with costs to the Respondents.
Orders accordingly.
Dated and Delivered at Nairobi this 22ndday of March, 2019.
P. N. WAKI
....................................
JUDGE OF APPEAL
M. WARSAME
....................................
JUDGE OF APPEAL
A. K. MURGOR
....................................
JUDGE OF APPEAL
I certify that this is a
true copy of the original
DEPUTY REGISTRAR