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Court of AppealAllowed· [2021] KECA 233 (KLR)

Bandari Investment Co. Limited v Service & 22 others (Civil Application E034 of 2021) [2021] KECA 233 (KLR)

Court of Appeal of Kenya
3 December 2021
1,664 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 allowed an applicant to fix a date error in a Notice of Appeal, ruling that technical objections cannot block access to justice.

What this practically means

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Executive summary

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This is a ruling by Lesiit, JA (sitting as a single judge of the Court of Appeal at Nairobi) on a Notice of Motion dated 30th April 2021 brought under rules 4, 41 and 44 of the Court of Appeal Rules, 2010. The applicant sought leave to amend its Notice of Appeal, which erroneously referred to a judgment delivered on 21st January 2021 instead of 28th January 2021, and for an extension of time to file and serve the amended notice. The 6th, 20th, 21st and 23rd respondents opposed, contending they had accrued rights under a striking-out application filed on 7th April 2021 (seven days before the applicant's motion), and invoking the sub-judice rule and Mitchell v Cheyo to argue that a second application remedying defects pointed out in a pending application should be stayed or struck out. The court held that the power to grant leave to amend is discretionary and must be exercised judicially on a balance of convenience. Relying on the single-judge decisions in Attorney General v Coalition for Reform & Democracy and John Mugambi v Kiama Wangui, the court found the authorities persuasive, held that the respondents' accrued right was compensable in costs, and that it could not be used to shut the applicant out on a technicality. The application was granted as prayed with costs to the respondents; leave to amend was granted within 7 days. This is an interlocutory ruling, not a judgment on the appeal itself, and does not disturb any decision below.

Key legal issues

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01

Whether leave to amend a Notice of Appeal may be granted where a respondent has already moved to strike out the notice

Holding

Leave was granted. The respondent's accrued right to prosecute a striking-out application is compensable in costs and does not defeat the applicant's substantive right of access to the appellate process.

Reasoning

The court held the discretion must be exercised judicially on a balance of convenience. Denial would deprive the applicant of the opportunity to prosecute the appeal; allowing it merely costs the respondents their striking-out application, which is compensable in costs. The sub-judice argument and accrued-rights argument were rejected as a technicality that cannot shut out a litigant from substantive justice, consistent with the single-judge authorities relied on.

p. 4
02

Whether the sub-judice rule bars a later application to remedy defects pointed out in a pending striking-out application

Holding

The sub-judice argument was rejected; the loss of the accrued right could be compensated in costs.

Reasoning

The four respondents relied on Mitchell v Cheyo for the proposition that a second application seeking to remedy omissions pointed out in a first pending application contravenes the sub-judice rule and should be stayed or struck out. The court did not adopt that ratio, holding instead that the alleged accrued right is compensable in costs and cannot bar the amendment.

p. 4

Legal principles established

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  • An application for leave to amend a Notice of Appeal is a discretionary one, to be exercised judicially on a balance of convenience after considering prejudice to both parties.
  • The respondent opposing an amendment must show prejudice which cannot be compensated in costs; loss of an accrued right to apply for striking out can be compensated in costs and cannot bar an amendment on a technicality.

Court orders

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  1. 1.The applicant's application dated 30th April, 2021 granted as prayed
  2. 2.Leave granted to amend the Notice of Appeal within 7 days from the date of delivery of the ruling
  3. 3.Costs of the application to the respondents

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 41
  • Court of Appeal Rules, 2010Rule 44
  • Court of Appeal Rules, 2010Rule 16(1)
  • Constitution of Kenya, 2010Article 159

Cases cited (4)

  • Attorney General & Another v Coalition for Reform & Democracy & 7 others
    (2015) eKLR
  • John Mugambi & Mugambi & Company Advocates v Kiama Wangui
    (2021) eKLR
  • Mitchell v Cheyo & others
    (2011) 1 EA 293
  • George Gikubu Mbuthia v Consolidated Bank of Kenya Ltd & Another
    (2016) eKLR
On appeal from
Environment and Land Court, Mombasa
Constitutional Petition No. 15 of 2017
Jurisdiction invoked
Rules 4, 41 and 44 of the Court of Appeal Rules, 2010

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, "Bandari Investment Co. Limited v Service & 22 others (Civil Application E034 of 2021) [2021] KECA 233 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/233/eng@2021-12-03

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