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Court of AppealDismissedCivil Application E035 of 2022· [2022] KECA 981 (KLR)

EMP v FNN

Court of Appeal
29 July 2022
PNP Nyamweya
2,097 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The applicant, EMP, sought leave by Notice of Motion dated 27th May 2022 to amend Mombasa Civil Application No. 55 of 2020, which had sought extension of time to file a Memorandum of Appeal and Record of Appeal out of time against a High Court judgment in Divorce Cause No. 1 of 2015. The proposed amendment would substitute a prayer for extension of time to file a Notice of Appeal, which had been lodged out of time on 4th June 2020 due to her former advocates' inadvertence. The respondent, FNN, opposed, arguing bad faith, material delay, that the amendment would change the character of the application, and that he had a pending application (Miscellaneous Civil Application No. 49 of 2020) to strike out the Notice of Appeal on the very grounds the amendment sought to cure. Nyamweya JA restated the liberal principles governing amendments, drawn from John Gakuo and Rubina Ahmed: amendments should be allowed absent injustice not compensable by costs, and in good faith. The court found the timing of the application, made when the strike-out application was ready for hearing, amounted to an attempt to steal a march on the respondent, causing prejudice not quantifiable in costs. The amendment would also substantially change the character of the application, which presupposed a competent appeal, and introduced factual averments proper to an affidavit. The application was dismissed with costs to the respondent, with the observation that the applicant remains free to file a separate extension application.

Key legal issues

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01

Whether leave to amend an application for extension of time should be granted

Holding

Leave was refused because the application was brought in bad faith, at a time when the Respondent's application to strike out the Notice of Appeal was ready for hearing, and the amendment would substantially change the character of the application.

Reasoning

The court applied the liberal amendment principles from John Gakuo and Rubina Ahmed: amendments should facilitate determination of the real question in controversy and be allowed absent uncompensable injustice. However, the applicant sought to cure a defective Notice of Appeal while a strike-out application on the same defects was pending, amounting to an attempt to steal a march. The amendment would also introduce factual averments proper to an affidavit and change the application's character, since the original presupposed a competent appeal.

p. 3

Legal principles established

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  • Amendments should be allowed liberally if they can be made without injustice to the other side which cannot be compensated by costs, provided the application is made in good faith
  • Leave to amend will be refused where the amendment would change the action into one of a substantially different character

Court orders

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  1. 1.The application dated 27th May 2022 seeking leave to amend Mombasa Civil Application No. 55 of 2020 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 82(1)

Cases cited (2)

  • Rubina Ahmed & 3 Others vs Guardian Bank Ltd (Sued in its capacity as a successor in title to First National Finance Bank)
    [2019] eKLR

    An amendment will not be allowed if it would change the character of the matter; principles on amendment

  • John Gakuo & Another vs County Government of Nairobi & Another
    [2017] eKLR

    Principles guiding an application for amendment

On appeal from
High Court
Divorce Cause No. 1 of 2015
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to grant leave to amend its own process (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, "EMP v FNN", Case Analysis (2022). Civil Application E035 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/981/eng@2022-07-29

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