MUSAMARINI LIMITED & 6 others v A.D.M. LIMITED & 5 others [2011] KECA 351 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a bid to fix a defective record of appeal because the applicants filed incomplete documents in bad faith and ignored the rules.
What this practically means
#Executive summary
#Key legal issues
#Compliance with rule 44(1) of the Court of Appeal Rules on applications for leave to amend
The application failed because no draft proposed amendment was annexed, lodged or served, as counsel conceded; the court could not act in the dark on what was being sought.
Rule 44(1) requires the amendment sought to be set out in writing and, if practicable, lodged with the Registrar and served on the respondent before the hearing. The purpose is to enable the court to know what new matter it is asked to introduce and to assess its legality and relevance. Counsel's suggestion that the draft be served after the ruling was rejected as acting in the dark, and the overriding objective could not cure this omission.
Limits of the overriding objective (sections 3A and 3B, Appellate Jurisdiction Act)
The overriding objective does not uproot established principles, precedent and rules of procedure; it enriches and guides their application.
Relying on Eastern Bakery vs Castelino and James Njuguna vs Francis Ngambi Rukomia, the court held that sections 3A and 3B facilitate just, expeditious and affordable resolution but are not a panacea for all ills. Their application requires a proper factual and legal foundation, and they cannot be used to excuse deliberate non-compliance with procedural rules.
Abuse of court process and the clean hands doctrine
A party who files a deliberately incomplete 'dummy' record of appeal to procure a consent order, without the consent of all parties, abuses court process and cannot invoke the court's discretion to regularise the position.
The record of appeal was admittedly filed solely to record a compromise of the superior court judgment and the appeal. One party objected and obtained restraining orders. The court found the applicants sought to hoodwink the court and to steal a match on a respondent who never wanted the appeal compromised; equitable and discretionary relief was therefore withheld.
Legal principles established
#- An application for leave to amend under rule 44(1) of the Court of Appeal Rules must set out the proposed amendment in writing and lodge and serve it before the hearing; without it the court cannot properly exercise its discretion, and the omission is fatal and cannot be cured by the overriding objective provisions.
- The overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act does not displace established procedural rules or settled principles governing the exercise of judicial discretion.
- A litigant who files an incomplete record of appeal in pursuit of a compromise not consented to by all parties, and who later seeks to regularise it, does not come to equity with clean hands and will be denied discretionary relief.
Court orders
#- 1.The notice of motion dated 30th June 2010 is dismissed
- 2.Costs of the application to the 1st, 3rd and 6th respondents
- On appeal from
- High Court of Kenya
- HCCC No. 170 of 2007 (A.D.M. Limited vs Musamarini Limited & 7 others)
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act (Chapter 9, Laws of Kenya) and rules 4, 16, 42, 43, 44 and 89 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njeru (Suing as Personal Representative of Njeru Nduati Rugendo) v Mbogo[2026] KECA 1899 (KLR)25 Sept 2026applied
- Mogeni v Koskei & another (Environment and Land Appeal E033 of 2023) [2024] KEELC 7032 (KLR)[2024] KEELC 7032 (KLR)24 Oct 2024applied
- Plaintiff/Applicant v 1st Defendant/1st Respondent & 2nd Defendant/2nd Respondent (Notice of Motion dated 26th April 2017 - application for leave to further amend plaint)[2018] KEHC 718 (KLR)21 Nov 2018
- Kinyanjui v Ketter & 5 others (Civil Appeal 183 of 2013) [2015] KECA 790 (KLR)[2015] KECA 790 (KLR)24 Apr 2015
- Mistry Investment Limited C. No. 16320 v Registered Trustees (as 2nd Plaintiff joinder application)[2014] KEHC 7725 (KLR)6 Mar 2014distinguished
Cite this brief
#Cite this brief
Caselaw, "MUSAMARINI LIMITED & 6 others v A.D.M. LIMITED & 5 others [2011] KECA 351 (KLR)", Case Analysis (2011). Civil Application No. NAI. 69 of 2010 (as arising in Civil Appeal No. 43 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/351/eng@2011-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.