Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2010] KECA 149 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can amend your memorandum of appeal at any stage, as long as justice isn't prejudiced.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should exercise its discretion to grant leave to amend the memorandum of appeal to add one further ground of appeal and one further prayer
- 2.Whether a memorandum of appeal is a primary document amenable to amendment
Key legal issues
#Whether the memorandum of appeal is a primary document capable of amendment
The memorandum of appeal is not listed among the primary documents under rules 85(1) and 85(2A) and is therefore amendable in the discretion of the Court, subject to the interests of justice.
Rule 85(1)(a) to (k) lists documents to be included in the record of appeal and rule 85(2A) lists those which may come in by supplementary record. The memorandum of appeal appears in neither list; it is a creation of the appealing party rather than a document stemming from the proceedings in the superior court, following Omolo JA in Uhuru Highway Development Ltd v Central Bank of Kenya.
How the discretion to amend a memorandum of appeal should be exercised
The discretion, though wide, is judicial and must be exercised on reason, not whim or caprice; where the amendment is relevant, no prejudice results and the applicant seeks to ventilate genuine issues before the final court, leave should be granted.
The rule confers the power but does not prescribe how it is exercised. The Court considered the substance of the dispute (over Shs. 17 million and a prime Nairobi property), that the judgment under appeal was obtained ex parte, that the intended amendments were not irrelevant, and that the respondent would have an opportunity to oppose the appeal, finding no likely prejudice.
Legal principles established
#- A memorandum of appeal is not a primary document and, subject to the interests of justice, is amenable to amendment; primary documents cannot be amended to validate otherwise incompetent appeals.
Court orders
#- 1.Leave to amend the memorandum of appeal granted; the amended memorandum of appeal as shown in the draft annexed to the motion to be filed and served within 7 days of the ruling
- 2.The applicant to bear the costs of the motion in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Court
- H.C.C.C. No. 205 of 1999
- Jurisdiction invoked
- Rule 44(1) of the Court of Appeal Rules (application for leave to amend memorandum of appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
it is clear on authority that primary document are not open to amendment in order to validate appeals which are otherwise incompetent
Accordingly, a memorandum of appeal, subject to the interests of justice, is always amenable to amendment.
The discretion to amend, like all discretions exercisable by the court, however wide or unfettered, must not be based on whim or caprice. It is a judicial process and must therefore be based on reason.
The amended memorandum of appeal as shown in the draft annexed to the motion shall be filed and served within 7 days of this ruling. The applicant shall bear the costs of the motion in any event.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (9)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbugua v Njenga & another (Civil Appeal (Application) E865 of 2025) [2026] KECA 1527 (KLR)[2026] KECA 1527 (KLR)31 Jul 2026followed
- John Mbau Mburu t/a J.M. Mburu & Company Advocates v County Government of Mombasa & Robinson Onyango Malombo t/a O. M. Robinson & Company Advocates13 Mar 2026followed
- Ethics and Anti-Corruption Commission v Wandavuu Limited & another; Wandavuu Limited (Cross Petitioner); County Government of Machakos & 4 others (Respondent); National Land Commission (Interested Party) (Environment and Land Case Civil Suit E089 of 2024) [2025] KEELC 6924 (KLR)[2025] KEELC 6924 (KLR)14 Oct 2025followed
- Otara v Mukuriah & 4 others (Environment and Land Case E031 of 2022) [2025] KEELC 5001 (KLR)[2025] KEELC 5001 (KLR)2 Jul 2025
- Ethics and Anti-Corruption Commission v Gathoni & 2 others (Environment & Land Case E256 of 2024) [2025] KEELC 683 (KLR)[2025] KEELC 683 (KLR)20 Feb 2025followed
- Eldoret Express Limited v Tawai Limited;National Land Commission (Interested Party) [2019] KECA 159 (KLR)[2019] KECA 159 (KLR)28 Nov 2019
- Teresa Kabirithu M’muketha v Teresa Kabirithu M’muketha & another [2018] KEELC 3751 (KLR)[2018] KEELC 3751 (KLR)18 Apr 2018
- Teresa Kabirithu M’muketha v Land Adjudication and Settlement Officer Tigania East & another [2018] KEELC 3715 (KLR)[2018] KEELC 3715 (KLR)18 Apr 2018
- Teresa Kabirithu M’muketha (Representing M’muketha M’thiringi) v Land Adjudication and Settlement Officer Tigania East & another [2018] KEELC 3705 (KLR)[2018] KEELC 3705 (KLR)18 Apr 2018
Cite this brief
#Cite this brief
Caselaw, "Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2010] KECA 149 (KLR)", Case Analysis (2010). Civil Application No. 58 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/149/eng@2010-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.