Mwakio v Kenya Commercial Bank Ltd [1987] KECA 83 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that applicants can usually amend appeal grounds unless the amendment would cause injustice or was made in bad faith.
What this practically means
#Executive summary
#Key legal issues
#Discretion to grant leave to amend a memorandum of appeal
The court's discretion should be exercised in favour of allowing the amendment where there is no mala fides and no uncompensable injury to the opponent, even where some proposed grounds may later prove faulty
Amendment is a discretionary matter governed by the general principle that leave is not declined unless injustice would result. The respondent's objections on the record were not established on the material before the court, and the merits of the proposed grounds could not be prejudged. Following the dictum in Tidesley v Harper, absent mala fides or injury beyond costs, the amendment should be allowed.
Alleged defective record as a bar to amendment
The objection that the applicant failed to include important exhibits was not established; the charge of presenting a defective record afforded no reason to refuse leave
The court found insufficient material to hold the record defective, noting it was bulky and voluminous though it included matters not normally found in appeal records. An unproven allegation of a defective record cannot justify refusing an amendment of the memorandum of appeal.
Relevance and comprehensibility of proposed additional grounds
The court cannot sit in judgment at the amendment stage on the relevance or merit of proposed grounds; that is for the hearing
Although many proposed grounds may not relate directly to the judgment appealed from and may prove faulty at the hearing, wrongly or rightly the applicant advances them as grounds for contesting the judgment below. Their sustainability is for the full court at the hearing, not for the single judge on an amendment application.
Legal principles established
#- Leave to amend an appeal document will normally be granted unless it would occasion injustice to the other side, or the applicant acts mala fide or causes injury not compensable in costs
- The meritoriousness or sustainability of proposed amended grounds is a matter for the court at the hearing of the appeal, not at the amendment stage
Court orders
#- 1.Leave granted and the motion allowed; the additional grounds of appeal handed to the court and counsel during the hearing were admitted and deemed part of the memorandum of appeal
- 2.Each party to bear his own costs of the application
- On appeal from
- High Court
- Not stated in judgment
- Jurisdiction invoked
- Rule 44 of the Court of Appeal Rules (application for leave to amend memorandum of appeal), in an appeal governed by rule 84 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Mwakio v Kenya Commercial Bank Ltd [1987] KECA 83 (KLR)", Case Analysis (1987). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/83/eng@1987-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.