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Court of AppealAllowedCivil Appeal No. 119 of 2013 (Notice of Motion dated 14th December 2018)· [2019] KECA 406 (KLR)

Mungai Njoroge & another v Kiarie Njoroge & another [2019] KECA 406 (KLR)

Court of Appeal of Kenya
6 August 2019
AMA.K. Murgor
865 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a deceased appellant's representative to add six appeal grounds, confirming amendments are freely allowed when they clarify issues without prejudicing opponents.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Murgor, JA, dated 6th August 2019, on a Notice of Motion dated 14th December 2018 by Ng'ang'a Mungai Muhindi, personal representative of the estate of the deceased appellant Mungai Njoroge in Civil Appeal No. 119 of 2013. The applicant sought leave to substitute the deceased appellant and to amend the Memorandum of Appeal to add six additional grounds. The substitution prayer had already been granted on 21st March 2019, the applicant having obtained letters of administration on 9th November 2018 in Succession Cause No. 54 of 2018. The remaining issue was amendment. Counsel for the applicant submitted that the memorandum, drafted by previous advocates, failed to capture that the High Court judgment was based on probability rather than the facts, and allocated the wrong acreage to the appellant. Rule 44 of the Court's rules allows amendment of any document with leave. Applying the Central Kenya Limited v Trust Bank Limited principles, the court held the proposed amendments were merely additional grounds clarifying the issues for determination and occasioned no prejudice to the respondents, whose only opposition came from a party appearing in person arguing the suit had been properly concluded. The application was allowed: the applicant was ordered to file and serve a supplementary record of appeal with the amended memorandum within fourteen days, with costs of the application in the intended appeal. The ruling is interlocutory and does not disturb the High Court decision.

Key legal issues

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01

Leave to amend a Memorandum of Appeal under Rule 44

Holding

The six additional grounds were merely additional grounds of appeal clarifying the issues to be canvassed; no prejudice would be occasioned to the respondents, so leave was granted.

Reasoning

Rule 44 permits amendment of any document with leave. Applying the Central Kenya Limited v Trust Bank Limited principles, the court found the proposed amendments simply identified with greater clarity the issues the appellant wished to canvass, introduced no new cause of action, and caused no injustice or prejudice to the respondents. The objection that the suit had been properly concluded by the High Court did not persuade the court.

p. 2

Legal principles established

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  • Amendments are permitted where necessary to determine the real question in controversy, without undue delay, no new or inconsistent cause of action, no vested interest affected, and without injustice to the other side.

Court orders

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  1. 1.The applicant is ordered to file and serve a supplementary record of appeal comprising the amended memorandum of appeal within fourteen days from the date of the ruling
  2. 2.Costs of the application shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 44

Cases cited (1)

  • Central Kenya Limited vs Trust Bank Limited
    [2000] 2 EA 365
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 44 of the Court of Appeal Rules (amendment of documents with leave of the Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mungai Njoroge & another v Kiarie Njoroge & another [2019] KECA 406 (KLR)", Case Analysis (2019). Civil Appeal No. 119 of 2013 (Notice of Motion dated 14th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/406/eng@2019-08-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.