Uhuru Highway Development Limited v Central Bank of Kenya & 7 others [2002] KECA 219 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a company to fix its appeal paperwork, confirming appeal memorandums can be amended but you cannot name co-litigants as appellants.
What this practically means
#Executive summary
#Key legal issues
#Whether a memorandum of appeal is a primary document which the Court has no jurisdiction to amend.
No. The primary documents are those listed in rule 85(1)(a)-(k) which cannot be brought into the record by supplementary record: pleadings, the trial judge's notes, affidavits and exhibits, the judgment or order, a certified copy of the decree or order, and the notice of appeal. A memorandum of appeal appears in neither rule 85(1) nor rule 85(2); it is a creation of the party appealing, not a product of the superior court proceedings, and is therefore always amenable to amendment subject to the interests of justice.
The court applied the scheme of rule 85 of the Court of Appeal Rules: rule 85(1)(a)-(k) lists the documents for a record of appeal and rule 85(2A) lists those that may be brought in by supplementary record; documents in neither list are 'primary'. The listed primary documents all form part of, or stem from, the proceedings in the superior court. A memorandum of appeal appears in neither list: it is not a product of those proceedings but a creation of the party appealing. It is therefore not a primary document and, subject to the interests of justice, is always amenable to amendment. Attorney General v Pattni was distinguished because a notice of appeal is a primary document.
Whether the applicant was entitled to name Pattni, Pansal and Grand Hotels as appellants in its memorandum of appeal.
No. Only parties who have lodged and served notices of appeal may be appellants. Pattni lodged his own notice of appeal and has filed Civil Appeal No. 15 of 2002, so in the applicant's appeal he could only be a respondent. Pansal and Grand Hotels never gave notice of intention to appeal and could not have lodged a competent appeal, so they too could only be respondents.
The motion ruled on by Aganyanya J was brought by four parties, but only the applicant and Pattni lodged and served notices of appeal on 19 July 2001. Pattni had lodged his own appeal, Civil Appeal No. 15 of 2002, so in the applicant's appeal he could only be a respondent; otherwise he would have filed two appeals from the same decision on a single notice. Pansal and Grand Hotels never indicated in a lawfully recognized manner that they wished to appeal and could not have lodged a competent appeal. A litigant cannot appeal on behalf of co-litigants or drag them into its appeal as appellants, so the proposed transposition was proper.
Whether the motion was properly filed in the Court given the earlier order requiring the written leave of the Chief Justice for any new appeal, application or other proceedings.
Yes. The Chief Justice gave written leave for the filing of Civil Appeal No. 286 of 2001, and applications necessarily incidental to the filing of that appeal require no separate leave; this motion, seeking amendment of the memorandum of appeal in that appeal, is such an incidental application.
An earlier order of the Court directed that no new appeal, application or other proceedings be lodged in the Court except with the written leave of the Chief Justice. It was agreed before the court that the Chief Justice did give written leave for the filing of Civil Appeal No. 286 of 2001. Because the motion sought amendment of the memorandum of appeal in that appeal, it was necessarily incidental to its filing, and no separate leave was required. The objection to the competence of the motion therefore failed.
Whether the notices of appeal were properly served on all persons directly affected under rule 76(1).
Yes. Both Pattni's notice of appeal and the applicant's notice of appeal showed on their face that they were to be served, and were in fact served, on all the parties directly affected, and were therefore sound on their face.
Rule 76(1) requires an intended appellant to serve copies of the notice of appeal on all persons directly affected before or within seven days after lodging it. Both Pattni's notice and the applicant's notice were served on all the parties directly affected, including Oraro & Company, George Oraro, the Central Bank of Kenya, the Deposit Protection Fund Board, Kittony and the co-plaintiffs. Service was therefore proper on its face. Whether Pattni's subsequent appeal was lodged in time or in good faith were matters the single Judge could not adjudicate.
Legal principles established
#- A memorandum of appeal is not a primary document; subject to the interests of justice, it is always amenable to amendment.
- Primary documents, being documents which cannot be brought into the record of appeal by way of a supplementary record, cannot be amended.
- A litigant cannot appeal on behalf of its co-litigants or include them as appellants in its appeal where they have not themselves lodged notices of appeal; such parties can only be respondents.
- Once an appeal has been filed with the written leave of the Chief Justice under a prior order of the Court, applications necessarily incidental to the filing of that appeal require no separate leave.
Court orders
#- 1.The notice of motion dated and lodged in Court on 24th December, 2001 allowed; the applicant to file an amended memorandum of appeal showing only the applicant as the appellant and Pattni, Pansal and Grand Hotels as respondents in addition to the other respondents in Civil Appeal No. 286 of 2001.
- 2.The applicant allowed to amend the prayers in Paragraphs B and C of the memorandum of appeal by deletion of the letter 's' in the word 'Appellants' in those paragraphs.
- 3.The amended memorandum of appeal to be lodged within seven days of the date of the ruling and served upon all the respondents, including the three new respondents, within seven days from the date of its lodgment.
- 4.The applicant to pay the costs of the motion, but only to the Central Bank of Kenya, Deposit Protection Fund Board, George Oraro and M/s Oraro & Company Advocates, the parties represented before the court during the motion.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 589 of 1999
- Jurisdiction invoked
- Rules 44, 16, 42 and 47 of the Court of Appeal Rules (motion to amend a memorandum of appeal); the underlying appeal, Civil Appeal No. 286 of 2001, was before the Court with the written leave of the Chief Justice granted under an earlier order of the Court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Uhuru Highway Development Limited v Central Bank of Kenya & 7 others [2002] KECA 219 (KLR)", Case Analysis (2002). Civil Application No. NAI 455 of 2001 (242/01 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/219/eng@2002-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.