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Court of AppealAllowedNot stated in judgment· [1987] KECA 83 (KLR)

Mwakio v Kenya Commercial Bank Ltd [1987] KECA 83 (KLR)

Court of Appeal
12 May 1987
1,193 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a single-judge interlocutory ruling of the Court of Appeal at Nairobi by Apaloo, JA, on an application under rule 44 of the Court of Appeal Rules for leave to amend a memorandum of appeal. The applicant, a layman whose charge over his land was threatened with the bank's statutory power of sale after alleged loan default, had sued the bank in the High Court seeking declaratory reliefs and damages. Porter, J dismissed the suit on April 14, 1986 with costs to the bank. The applicant lodged a memorandum of appeal containing 33 grounds and later sought to add 19 further grounds. The respondent objected on two bases: that the record was defective for omitting important exhibits, and that the proposed additional grounds were irrelevant or incomprehensible. The court found the record objection unestablished on the material before it, and held that the merits and relevance of proposed grounds are matters for the court at the hearing of the appeal, not at the amendment stage. Adopting Bramwell LJ's dictum in Tidesley v Harper (10 Ch D 396), the court held that leave to amend should not be refused absent mala fides or injury not compensable in costs, and noted that the charged property was substantial security for any costs. The motion was allowed, the additional grounds admitted as part of the memorandum of appeal, and each party ordered to bear its own costs of the application.

Key legal issues

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01

Discretion to grant leave to amend a memorandum of appeal

Holding

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

Reasoning

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.

p. 2
02

Alleged defective record as a bar to amendment

Holding

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

Reasoning

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.

p. 2
03

Relevance and comprehensibility of proposed additional grounds

Holding

The court cannot sit in judgment at the amendment stage on the relevance or merit of proposed grounds; that is for the hearing

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.