Dama Charo v Municipal Council of Mombasa & 2 others
The bottom line
#Kenya's Court of Appeal allowed a late amendment to an appeal, confirming courts will broadly permit changes unless they cause prejudice money can't fix.
What this practically means
#Executive summary
#Key legal issues
#Amenability of a memorandum of appeal to amendment
A memorandum of appeal is a pleading like any other and is amenable to amendment subject to the interests of justice.
The court adopted the pronouncement in John Gakuo and the earlier holding in Uhuru Highway Development Ltd v Central Bank of Kenya that a memorandum of appeal is always amenable to amendment subject to the interests of justice, applying the same rules that govern amendment of pleadings.
Whether the amendment introduced a new or inconsistent cause of action
It did not: the challenge to the consent judgment of 4th May 2017 was already before the trial court through the application dated 23rd June 2017 and extensive submissions on the consent judgment's validity.
The court held that the enquiry extends beyond comparing the two memoranda to the pleadings, the impugned ruling, and the submissions before the trial court. The prayer to vary, review or set aside the consent order was the subject of the application that gave rise to the appeal, so the new grounds were not a fresh or inconsistent cause of action.
Effect of delay in filing the amendment application
The delay in filing on the hearing date was not sufficient ground to deny the amendment; any prejudice is ameliorated by an award of costs.
Although the Applicant waited until the date fixed for hearing of the appeal, the court found no sufficient basis to drive the Applicant from articulating her case. The prejudice, if any, to the 1st and 2nd Respondents could be compensated in costs, consistent with the Eastern Bakery principles.
Legal principles established
#- A memorandum of appeal is a pleading amenable to amendment, and the power to amend under Rule 44 is discretionary and must be exercised judiciously and upon reason.
- Amendments to pleadings should be liberally allowed before judgment, and will be refused only where a new or inconsistent cause of action is introduced, vested or accrued rights are adversely affected, or prejudice incapable of compensation in costs is occasioned.
- In determining whether an amended memorandum introduces a new or inconsistent cause of action, the court looks beyond the previous and draft memorandum to the pleadings, the impugned ruling or judgment, and the submissions urged below.
- Delay in bringing an amendment application is not of itself fatal where the other side can be compensated by costs.
Court orders
#- 1.The Notice of Motion dated 12th May 2020 is allowed
- 2.Leave granted to amend the memorandum of appeal dated 18th April 2019, with the amended memorandum of appeal dated 13th May 2020 deemed duly filed upon payment of the requisite filing fees
- 3.The 1st Respondent will have the costs of the application
- On appeal from
- Environment and Land Court
- Civil Suit No. 124 of 2018 (O.S.)
- Jurisdiction invoked
- Rule 44 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dama Charo v Municipal Council of Mombasa & 2 others", Case Analysis (2022). Civil Application (leave to amend memorandum of appeal dated 18th April 2019 in Environment and Land Court Civil Suit No. 124 of 2018 (O.S.)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/137/eng@2022-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.