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Court of AppealAllowedNot stated in the judgment (application dated 15th June 2020)· [2021] KECA 134 (KLR)

National Land Commission v Runji & 4 others (Civil Appeal 24 of 2020) [2021] KECA 134 (KLR)

Court of Appeal of Kenya
5 November 2021
955 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you can amend a notice of appeal to fix honest mistakes, so long as no one is prejudiced.

What this practically means

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Executive summary

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This is a ruling by a single judge of the Court of Appeal at Mombasa (S. Gatembu Kairu, JA) on a chamber application by the National Land Commission, filed under Article 159(2)(d)(e) of the Constitution, Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 16, 42, 43 and 44 of the Court of Appeal Rules, seeking leave to amend its notice of appeal. The intended appeal challenges a High Court judgment delivered on 12th November 2019 by the Hon. Mr. Justice E.K. Ogola, but the notice of appeal misdescribed the Judge as Lady Justice E.K. Ogola. The 5th respondent supported the application; the 1st, 2nd, 3rd and 4th respondents opposed, arguing that a single judge lacked jurisdiction to hear it, that a notice of appeal is a primary document not amendable per Abdala Otieno Kitengo vs. Republic, and that the appeal was otherwise incompetent as filed outside the 60-day period under Rule 82. The judge held that Rule 53 permits a single judge to entertain the application, that the misdescription was an inadvertent blunder causing no demonstrated prejudice, and that Kitengo predates Article 159's requirement that substantive justice prevail over technicalities. Later decisions confirm that a notice of appeal is amendable. The application was allowed in terms of prayers 1 and 2, with 10 days to file and serve an amended notice of appeal, and costs of the application were made costs in the appeal.

Key legal issues

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01

Whether a notice of appeal may be amended to correct a misdescription of the Judge whose decision is appealed

Holding

Yes. The misdescription of Justice E.K. Ogola as Lady Justice was an inadvertent blunder; the amendment was allowed because no prejudice was shown and substantive justice prevails over technicality under Article 159.

Reasoning

The court found no contest that the impugned judgment was delivered by the Hon. Mr. Justice E.K. Ogola, so the reference to Lady Justice was a blunder. Relying on Madan, JA in Belinda Murai, mistakes are rectifiable where the interests of justice so dictate. The Kitengo decision that a notice of appeal is not amendable predated Article 159's dictate that substantive justice must reign over technicalities, and later decisions confirm amenability to amendment.

p. 2
02

Whether a single judge has jurisdiction to hear an application for amendment of a notice of appeal

Holding

Yes, under Rule 53 of the Court of Appeal Rules the objection that the matter was for the full Court was rejected.

Reasoning

Counsel for respondents argued that the application, not being one for extension of time under Rule 4, was for the full Court. The single judge held that Rule 53 of the Court of Appeal Rules expressly permits a single judge to entertain such an application, so the jurisdictional objection failed.

p. 2

Legal principles established

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  • A notice of appeal is amenable to amendment, and inadvertent mistakes in it that occasion no prejudice may be corrected in the interests of substantive justice under Article 159 of the Constitution.
  • An application for amendment of a notice of appeal may be heard by a single judge under Rule 53 of the Court of Appeal Rules.

Court orders

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  1. 1.The application is allowed in terms of prayers 1 and 2 of the application dated 15th June 2020
  2. 2.The applicant has 10 days from the date of delivery of the ruling to file and serve an amended notice of appeal correcting the title of the Judge whose judgment is challenged
  3. 3.Costs of the application shall be in the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)(e)
  • Appellate Jurisdiction ActSections 3, 3A and 3B
  • Court of Appeal RulesRules 4, 16, 42, 43, 44, 53, 82

Cases cited (5)

  • Attorney General vs. Coalition for Reform and Democracy & 7 others
    [2015] eKLR
  • William Ngare & 4 others vs. Public Trustee & 10 others
    [2012] eKLR
  • Abdala Otieno Kitengo vs. Republic
    [2002] eKLR
  • Belinda Murai & 9 other vs. Amos Wainaina
    [1979] eKLR
  • S.K. Macharia and another vs. Standard Chartered Bank Limited
    [2012] eKLR
On appeal from
High Court
Jurisdiction invoked
Article 159(2)(d)(e) of the Constitution; Sections 3, 3A and 3B of the Appellate Jurisdiction Act; Rules 16, 42, 43, 44 and 53 of the Court of Appeal Rules

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, "National Land Commission v Runji & 4 others (Civil Appeal 24 of 2020) [2021] KECA 134 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 15th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/134/eng@2021-11-05

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