Okeno & 2 others v Yhap (Application 27 of 2020)
The bottom line
#Kenya's Court of Appeal confirmed you can amend your memorandum of appeal after filing, provided the new grounds come from the trial record.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a memorandum of appeal is amenable to amendment
- 2.Whether the nature and extent of the proposed amendments warrant leave being granted
- 3.Whether the application was brought within a reasonable time
- 4.Whether any new or inconsistent cause of action is introduced and whether any prejudice will be occasioned to the Respondent
Key legal issues
#Amenability of a memorandum of appeal to amendment
A memorandum of appeal is amenable to amendment just like any other pleading, and the application on that basis was properly before the court.
The court applied the principle from Kenya Hotels Ltd v Oriental Commercial Bank Ltd that the power under Rule 44(1) to amend any document is discretionary but must be exercised judiciously and upon reason. Since a memorandum of appeal is a document, it falls within the amendable category, satisfying the threshold requirement for the application.
Nature and extent of the proposed amendments
Amendments intended to bring clarity and particularity, and new grounds founded on pleadings and evidence before the trial court, are properly allowable; no new or inconsistent cause of action was introduced and no prejudice would be occasioned.
The court reviewed each proposed amendment, finding those in paragraphs 4, 11, 12, 14 and 17 aimed at clarity, and the new grounds in paragraphs 6, 16, 18 and 19 grounded on the pleadings and trial evidence. Grounds crossed out or left unamended affected nothing. No prejudice or injustice to the Respondent was identified.
Whether the application was brought within a reasonable time
The application, filed about nine months after the appeal, was brought in good time because new counsel acted with speed upon being seized of the appeal.
The appeal was filed on 9th December 2020 and the application on 14th September 2021, simultaneously with a notice of change of advocates from Oduol & Co. Advocates to Mr. Magani. The court accepted that the delay was attributable to the change of counsel and that the current advocate acted promptly, satisfying the Kyalo v Bayusuf Brothers Ltd requirement of reasonable time.
Legal principles established
#- A memorandum of appeal is a document amenable to amendment under Rule 44(1) of the Court of Appeal Rules, and the power to allow amendment is discretionary and must be exercised judiciously.
- New grounds of appeal properly founded on pleadings and evidence canvassed before the trial court, which the trial judge is alleged to have ignored or misapplied, will be readily allowed on amendment.
Court orders
#- 1.Leave granted to the Applicants to amend the Grounds of Appeal and the Memorandum of Appeal dated 9th December 2020 as per the annexed Draft Memorandum of Appeal
- 2.Leave granted to the Applicants to file a Further Supplementary Record of Appeal
- 3.Both documents to be filed and served within 21 days from the date of the ruling
- 4.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court at Mombasa
- HCCC No. 2 of 2014
- Jurisdiction invoked
- Sections 42, 44(1) and 47 of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, leave to amend the Grounds of Appeal and the Memorandum of Appeal dated 9th December 2020 is granted to the Applicants as per the annexed Draft Memorandum of Appeal.
Leave is also granted to the Applicants to file Further Supplementary Record of Appeal. Both documents be filed and served within 21 days from the date of this ruling.
I order that costs of this application be in the cause.
The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the court may at any stage order the amendment of any document
It is trite that the power reserved for the Court by rule 44(1) of the Court of Appeal Rules to amend any document is a discretionary power.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okeno & 2 others v Yhap (Application 27 of 2020)", Case Analysis (2022). Application 27 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/515/eng@2022-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.