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Court of AppealDismissedCivil Appeal 107 of 2016· [2022] KECA 814 (KLR)

Wapang'ana v Equity Bank Limited & another

Court of Appeal
27 May 2022
PKP. O. KiageKMK. M'inotiMNMumbi Ngugi
1,231 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let a litigant add a new jurisdiction argument on appeal, calling it an abuse of process, and awarded costs to the bank.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Kiage, M'inoti and Ngugi, JJA) on a motion dated 26th June 2019 under Rule 44 of the Court of Appeal Rules, in which the applicant sought leave to amend the memorandum of appeal in its entirety. The underlying appeal challenged the High Court at Bungoma (Mukunya, J.) declining to review and set aside orders dismissing the applicant's suit for want of prosecution and disallowing reinstatement of expired injunctive orders. The applicant, initially acting in person, sought to introduce eight new grounds, most notably a claim that the trial judge, being an Environment and Land Court judge, lacked jurisdiction over a commercial dispute on realization of security by a chargee. The respondents opposed, arguing the applicant himself moved the Environment and Land Court, that this Court had already heard an appeal on the injunctive orders, and that the application was designed to delay the bank's statutory power of sale. The Court held that a full Court could properly determine an application designated for a single judge under Rule 53, since a single judge acts for the Court. Applying the discretion principles in Patriotic Guards Ltd v Sambu and the limiting principles in John Mugambi v Kiama Wangai, the Court found the proposed jurisdictional ground an abuse of process, given that the applicant instituted the suit himself without any jurisdiction issue arising at trial, and that the material and substantial amendment would prejudice the respondent. The application was dismissed with costs.

Key legal issues

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01

Whether leave to amend a memorandum of appeal should be granted where the amendment introduces a new jurisdictional ground

Holding

Leave refused; the new jurisdictional ground was an abuse of process since the applicant himself instituted the suit in the Environment and Land Court without raising jurisdiction, and the amendment would prejudice the respondent.

Reasoning

The Court applied the discretionary principles in Patriotic Guards Ltd v Sambu and the limiting principles in John Mugambi v Kiama Wangai. It noted the applicant filed the suit himself and never raised jurisdiction at trial, so raising it on appeal was puzzling and abusive. The change was material and substantial and likely to prejudice the respondent, justifying refusal of the amendment.

p. 3
02

Whether a full Court could hear an application designated for a single judge under Rule 53

Holding

Yes; a single judge acts for the Court, no prejudice arises, and the proviso to Rule 53(1) permits a full Court to hear such applications.

Reasoning

The Court acknowledged that under Rule 53 the application should have been heard by a single judge, but held that a single judge acts for the Court, that no prejudice would be occasioned by a full Court hearing, and that the proviso to Rule 53(1) expressly allows applications heard by a single judge to be heard by a full Court.

p. 2

Legal principles established

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  • The power to allow amendment of a memorandum of appeal under Rule 44 is discretionary and must be exercised judiciously upon legal principles and the need to do substantial justice.
  • Amendment introducing a new or inconsistent cause of action, or prejudicing vested rights, may be declined.
  • A full Court may properly determine an application that should ordinarily have been heard by a single judge, since a single judge acts for the Court.

Court orders

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  1. 1.The application dated 26th June 2019 seeking leave to amend the memorandum of appeal is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 44
  • Court of Appeal RulesRule 53(1) and proviso
  • Civil Procedure Rules, 2010Order 17 rule 2(1)
  • Civil Procedure Rules, 2010Order 48 rule 2

Cases cited (6)

  • Co-operative Bank of Kenya Limited vs Patrick Njuguna & 5 others
    [2017] eKLR

    Role of the Environment and Land Court in matters connected to use of land; cited by applicant's counsel

  • Floriculture International Limited -vs- Central Kenya Limited & 3 others
    [1995] eKLR

    Jurisdiction may be raised for the first time on appeal; cited by applicant's counsel

  • Ali Bin Khamis -vs- Salim Bin Khamis Kirobe & others
    [1956] 1 EA 195

    Inherent jurisdiction to set aside an order made without service; cited by applicant's counsel

  • Patriotic Guards Limited -vs- James Kipchirchir Sambu
    [2018] eKLR

    Principles for judicious exercise of discretion; quoted and adopted by the Court

  • George Gikubu Mbuthia -vs- Consolidated Bank of Kenya Ltd & another
    [2016] eKLR

    Amendment of pleadings should be allowed any time before judgment

  • John Mugambi & Mugambi & Company Advocates -vs- Kiama Wangai
    [2021] eKLR

    Circumstances in which amendment may be declined; quoted and adopted by the Court

On appeal from
High Court of Kenya at Bungoma
HCCC No. 91 of 2011
Jurisdiction invoked
Rule 44 of the Court of Appeal Rules (application for leave to amend memorandum of appeal); heard by full Court under the proviso to Rule 53(1)

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, "Wapang'ana v Equity Bank Limited & another", Case Analysis (2022). Civil Appeal 107 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/814/eng@2022-05-27

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