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Court of AppealPartially AllowedCivil Appeal (Application) 73 of 2019· [2022] KECA 1163 (KLR)

John Mbau Mburu & Company Advocates v County Government of Mombasa; Robison Onyangi Malombo t/a OM Robison & Company Advocates (Interested Party)

Court of Appeal
21 October 2022
JLJW Lessit
3,754 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal let an advocate amend parts of his appeal but refused extra evidence attacking the judge and non-parties.

What this practically means

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Executive summary

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This ruling by Lessit, JA of the Court of Appeal at Mombasa determined a notice of motion by the applicant, an advocate, seeking leave to amend his memorandum of appeal and to adduce additional evidence in an appeal against the High Court's dismissal of his constitutional petition over unpaid legal fees. The High Court (Ogola, J) had held the claim for unsettled fees was not a proper matter for a constitutional petition. The court first rejected the applicant's objection to the interested party's participation, holding that a party named in the petition who fully participated at trial and was enjoined in the appeal remains a party. On amendment, the court applied the Mbuthia principles and allowed amendments challenging the judgment and containing minor corrections (paragraphs 2, 5, 9, 10, 11, 15, 16 and 17), but refused paragraphs 13 and 20 as scandalous, personalized attacks on the trial judge that introduced a new cause of action and a new party. On additional evidence, the applicant failed to address the Ladd v Marshall criteria of diligence, importance and credibility; the proposed evidence relied on YouTube clips and third-party information targeting non-parties who had not been served. The court warned that allowing such applications would intimidate judges and set a dangerous precedent, and applied the Supreme Court's Mohamed Abdi Mahamud guidelines. The application partly succeeded: amendment was allowed in part, additional evidence refused, and costs were made to abide the outcome of the appeal.

Key legal issues

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01

Locus standi of the interested party

Holding

The objection to the IP's participation failed; having been named in the petition, participated fully in the High Court and been enjoined in the appeal by the applicant, the IP is a party to the appeal.

Reasoning

The court declined to dwell on the objection, noting the IP was named in the petition and fully participated at the High Court hearing. Having been enjoined in the appeal by the applicant himself, his role as a party cannot be denied or reduced to that of a stranger. The objection was therefore not merited.

p. 4
02

Amendment of the memorandum of appeal

Holding

Amendments challenging findings and containing minor corrections were allowed; paragraphs 13 and 20 were refused as scandalous, introducing a new cause of action and a new party.

Reasoning

Applying the Mbuthia principles, the court tested each amendment for a new or inconsistent cause of action, adverse effect on vested rights, and uncompensatable prejudice. Paragraphs challenging the judgment and minor corrections passed; the paragraphs attacking the judge personally and alleging misconduct against a non-party failed.

p. 5
03

Adduction of additional evidence on appeal

Holding

The application for additional evidence failed; the applicant did not address the Ladd v Marshall criteria of diligence, influence on the result and credibility, and the evidence targeted non-parties who had not been served.

Reasoning

The court applied rule 29 and the Ladd v Marshall principles as summarized by Chesoni, Ag JA, plus the Mohamed Abdi Mahamud guidelines. The 324-page affidavit relied on YouTube clips, third-party information and allegations against non-parties; due diligence, credibility and relevance were unaddressed, and allowing it would intimidate judges and set a dangerous precedent.

p. 6

Legal principles established

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  • An interested party properly enjoined in the High Court petition and named in the appeal is a party to the appeal and cannot be relegated to a stranger.
  • Amendments to a memorandum of appeal will be refused where they are scandalous, introduce a new cause of action or bring in a new party.
  • Additional evidence on appeal must satisfy the Ladd v Marshall principles as adopted in Kenya and the Mohamed Abdi Mahamud guidelines.

Court orders

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  1. 1.Leave granted to amend the memorandum of appeal as per paragraphs 2, 5, 9, 10, 11, 15, 16 and 17 of the application
  2. 2.Applicant to file and serve the amended memorandum of appeal within 30 days and pay requisite fees, if any
  3. 3.Failure to comply, the leave granted shall lapse
  4. 4.Costs shall abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 44
  • Court of Appeal Rulesrule 16
  • Court of Appeal Rulesrule 29(1)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Mutunga Rulesrule 2
  • Court of Appeal Rules, 2010rule 44(1)
  • Court of Appeal Rules, 2022rule 46
  • Court of Appeal Rules, 2022rule 31

Cases cited (7)

  • Uhuru Highway Dev Ltd v Central Bank of Kenya
    (2002) 1 EA 314

    Memorandum of appeal is amenable to amendment; amendments should be allowed liberally

  • St Patrick's Hill School Limited v Bank of Africa Kenya Limited
    eKLR HCCC No 7 of 2017

    Liberal allowance of amendments to memorandum of appeal

  • John Gakuo & Anor v County Government of Nairobi
    Civil Application No 201 of 2016

    Principles guiding amendment applications

  • George Gikubu Mbuthia v Consolidated Bank of Kenya Ltd & Another
    (2016) eKLR

    Circumstances in which courts refuse amendments: new cause of action, vested rights, uncompensatable prejudice

  • Mzee Wanjie and 93 others v AK Saikwa and others

    Ladd v Marshall principles for receiving further evidence on appeal

  • Ladd v Marshall
    [1954] 1 WLR 1489

    Three principles for additional evidence: diligence, importance, credibility

  • Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party)
    [2019] eKLR

    Governing principles on allowing additional evidence in appellate courts

On appeal from
High Court at Mombasa
HC Petition No. 4 of 2017
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rules 16, 29(1) and 44 of the Court of Appeal Rules

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, "John Mbau Mburu & Company Advocates v County Government of Mombasa; Robison Onyangi Malombo t/a OM Robison & Company Advocates (Interested Party)", Case Analysis (2022). Civil Appeal (Application) 73 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1163/eng@2022-10-21

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