Bandari Investment Co. Limited v Service & 22 others (Civil Application E034 of 2021) [2021] KECA 233 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave to amend a Notice of Appeal may be granted where a respondent has already moved to strike out the notice
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.
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.
Whether the sub-judice rule bars a later application to remedy defects pointed out in a pending striking-out application
The sub-judice argument was rejected; the loss of the accrued right could be compensated in costs.
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.
Legal principles established
#- 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
#- 1.The applicant's application dated 30th April, 2021 granted as prayed
- 2.Leave granted to amend the Notice of Appeal within 7 days from the date of delivery of the ruling
- 3.Costs of the application to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.