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Court of AppealDismissedCivil Appeal (Nakuru) arising from ELRC Cause No 3 of 2015

Wanyama v South Nyanza Sugar Company Ltd (Civil Appeal 81 of 2019) [2023] KECA 609 (KLR)

Court of Appeal of Kenya
2 June 2023
3,424 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you cannot sue for a wrong that has not happened yet, and must follow court orders when amending pleadings.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nakuru against the judgment of Mbaru, J in the Employment and Labour Relations Court dismissing Fredrick Wanjala Wanyama's claim against South Nyanza Sugar Company Limited. The appellant had been interdicted as security manager in October 2014 over allegations of soliciting a bribe during an investigation into theft of scrap metals, and was later dismissed, with the dismissal communicated on January 19, 2016. He filed a Memorandum of Claim in February 2015, later sought to amend it in February 2017 to plead wrongful interdiction, but failed to serve the amended pleading as expressly ordered by the trial court, which disregarded the amendment. The Court of Appeal, hearing counsel's submissions after the appellant's counsel failed to attend the virtual hearing, framed three substantive issues: whether the trial court properly disregarded the amended claim; the nature and ripeness of the cause of action; and whether the evidence proved the claim. The Court held that amendment with leave must comply with the terms of the order granting it, that the trial court's discretion in disregarding the unserved amendment was properly exercised and should not be disturbed on appeal, and that a cause of action arises only after the wrong complained of occurs. The claim for unfair dismissal, filed before the dismissal, was premature; the appellant's evidence on interdiction was also at variance with his pleaded cause of action. The appeal was dismissed, with each party bearing its own costs in light of the appellant's individual status and the respondent's contribution to delays.

Questions the Court framed

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

  1. 1.Whether the trial court properly disregarded the Amended Memorandum of Claim for failure to serve it as ordered
  2. 2.What the appellant's cause of action was, and whether the claim was prematurely filed before the cause of action arose
  3. 3.Whether the evidence on record proved the appellant's claim
  4. 4.Who bears the costs of the appeal

Key legal issues

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01

Whether the trial court properly exercised its discretion in disregarding the Amended Memorandum of Claim

Holding

Yes. The conditional order of February 20, 2017 requiring filing and service of the amended claim was not complied with, and no evidence of service was produced; the trial court's discretion was properly exercised and will not be disturbed.

Reasoning

Amendment of pleadings with leave must be effected within the terms of the order granting permission. Leave to amend is discretionary, as is the assessment of the consequences of non-compliance. The record showed the court twice directed service and there was no proof the amended memorandum was served. Applying the established principles for interfering with discretionary decisions, the appellate court found no misdirection, misapprehension of facts, or plain wrong decision warranting interference.

p. 5
02

Whether the claim was prematurely filed before the cause of action arose

Holding

Yes. A cause of action arises only after the wrong complained of has occurred; the appellant filed a claim for unfair dismissal before he had been dismissed, while his interdiction was the only event then extant.

Reasoning

Adopting the definitions in Read v Brown, Letang v Cooper and Drummond Jackson as restated in Attorney General v Andrew Maina Githinji, a cause of action is a factual situation entitling a party to a remedy. It arises only after the wrong occurs. The appellant's dismissal communicated on January 19, 2016 post-dated the February 2015 claim for unfair dismissal; he merely apprehended a looming wrong that was not ripe, rendering the claim premature.

p. 6
03

Whether the evidence on record proved the appellant's claim

Holding

No. The cause of action was as contained in the initial Memorandum of Claim (unfair dismissal), yet the appellant's evidence centred on interdiction and bore little relation to the dismissal, creating a variance between pleading and proof.

Reasoning

The operative pleading was the original Memorandum of Claim, since the amendment was disregarded. The claim therein was for unfair dismissal, filed before the dismissal occurred. At hearing, the appellant had been dismissed but his testimony focused on interdiction. Parties are bound by their pleadings and evidence at variance with the cause of action cannot sustain the claim; the case was therefore convoluted and unproved.

p. 6

Legal principles established

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  • A cause of action arises only upon occurrence of the wrong complained of; a claim lodged before the cause of action has ripened is premature and may be dismissed.
  • Leave to amend pleadings must be complied with on the terms of the order granting it; a court may in its discretion disregard an amended pleading whose service conditions were not fulfilled.
  • An amended pleading supersedes the original pleading, but a court may lawfully disregard an amendment where the conditions of the order permitting it were not met.
  • On a first appeal, the Court of Appeal must independently re-appraise the evidence and reach its own conclusion, while acknowledging that it lacks the trial court's advantage of observing witness demeanour.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear own costs

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court, Nakuru
Cause No 3 of 2015
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022

Relief refused

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Allowance of the appeal and awards as prayed in the Statement of Claim (reinstatement/compensation for interdiction)

The claim as filed was premature and the evidence adduced was at variance with the pleadings; the amended claim was never served as ordered

p. 6

Costs

Each party to bear own costs

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.

A cause of action arises out of the occurrence of a factual situation which entitles a party to seek redress from the court.
p. 4Definition of cause of action
It is further clear that a cause of action can only arise after occurrence of a wrong complained of. In this case, the appellant was apprehensive of a looming wrong but the same was not ripe.
p. 6Premature filing before cause of action arises
we have no doubt that amendment of pleadings with leave must be dispensed with within the terms of the order granting the permission.
p. 5Compliance with orders for amendment of pleadings
This is a first appeal and Rule 31(1)(a) of the Court of Appeal Rules, 2022 requires of us to independently re-appraise the evidence and arrive at our own conclusion.
p. 4Duty of first appellate court
The upshot of the foregoing is that this appeal is without merit and is hereby dismissed. Each party to bear own costs.
p. 6Disposition and costs

Issues in the judgment

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minor

The judgment states the initial Memorandum of Claim was lodged on January 15, 2015, while the opening paragraph records it as dated February 15, 2015 - an internal date inconsistency.

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, "Wanyama v South Nyanza Sugar Company Ltd (Civil Appeal 81 of 2019) [2023] KECA 609 (KLR)", Case Analysis (2023). Civil Appeal (Nakuru) arising from ELRC Cause No 3 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/609/eng@2023-06-02

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