Gakuo & another v County Government Of Nairobi & another (Civil Appeal (Application) 201 of 2016) [2017] KECA 298 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can amend a memorandum of appeal to fix genuine errors like a wrong salary figure, provided the other side suffers no real injustice.
What this practically means
#Executive summary
#Key legal issues
#Whether a memorandum of appeal can be amended
Yes. The court proceeded on the premise that a memorandum of appeal is a pleading like any other, citing Uhuru Highway Development Ltd v Central Bank of Kenya.
The court noted the point was not contested and adopted the earlier holding that a memorandum of appeal is always amenable to amendment subject to the interests of justice. The rules on amendment of pleadings therefore apply to a memorandum of appeal.
The principles governing amendment of pleadings
Amendments should be freely allowed before hearing if made without injustice, which can be compensated by costs; but the court cannot permit substitution of one cause of action for another or a change in the subject matter of the suit.
Relying on Eastern Bakery v Castelino and Halsbury's Laws of England (as cited with approval in Wareham v Kenya Post Office Savings Bank), the court set out the criteria: good faith, materiality to the real question in controversy, no prejudice to the other side, and whether injustice can be cured by costs.
Whether the proposed amendment introduced a fresh cause of action
No. The amendment merely corrected the monthly gross salary figure (Ksh. 304,375.00 from the September payslip and appointment letter) instead of the October figure covering only seven days worked, based on the same facts.
The ELRC Judge had intended to award twelve months' gross salary but used the October payslip figure representing one week's salary. The appointment letter and September payslip showed the true monthly gross salary. The claim was always for compensation based on monthly salary, so no new cause of action was introduced. The amendment paves the way to argue the point on appeal but is not a finding on the merits.
Legal principles established
#- A memorandum of appeal is a pleading and, subject to the interests of justice, is amenable to amendment on the same principles governing amendment of pleadings.
- Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.
- The court will not allow an amendment that substitutes one distinct cause of action for another or changes the subject matter of the suit.
- An amendment correcting an erroneous figure relied on by the trial court, based on the same facts and made before the appeal is set down for hearing, does not introduce a fresh cause of action.
Court orders
#- 1.Leave granted to amend the memorandum of appeal to introduce the ground challenging the use of Ksh. 66,213.70 instead of Ksh. 304,375.00 as gross monthly salary in assessing compensation
- 2.No order as to costs
- On appeal from
- Employment and Labour Relations Court (petitions originally filed in the High Court and transferred to the ELRC)
- not stated (petition dated 24th April 2015)
- Jurisdiction invoked
- Rule 44 of the Court of Appeal Rules (appellate jurisdiction over the pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gakuo & another v County Government Of Nairobi & another (Civil Appeal (Application) 201 of 2016) [2017] KECA 298 (KLR)", Case Analysis (2017). Civil Appeal (Notice of Motion dated 15th November 2016) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/298/eng@2017-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.