Japhet Noti Charo v Kenya Airways Authority
The bottom line
#Kenya's Court of Appeal let an appellant fix a wrong party name and add some appeal grounds, but refused new unpleaded issues.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the supplementary affidavit filed without leave (or outside the leave granted) is properly on record and what the court should do with it
- 2.Whether the applicant should be granted leave to amend the memorandum of appeal to correct the misdescription of the respondent
- 3.Whether the applicant should be granted leave to add the proposed additional grounds, including ground 1(c) on want of a board resolution
Key legal issues
#Status of the supplementary affidavit filed outside the leave granted
The affidavit was irregularly on record but was admitted since no prejudice was shown and parties were able to put their cases forward.
Leave granted by Nyamweya, JA on May 4, 2022 allowed 14 days; the affidavit was filed November 7, 2022, well outside that period. However, the court applies the principle that disputes should be heard on their merits and mere lateness should not deter a litigant, absent prejudice to the other side.
Amendment to correct misdescription of the respondent
Leave granted; the misdescription of Kenya Airways as an 'authority' instead of a limited company was bona fide inadvertence, not mala fides, and misled no one.
The suit was instituted by an existing party merely mis-described as to its legal status; the parties knew in whose favour the decision was granted. Following Tidesley v Harper and Mwakio v Kenya Commercial Bank, leave to amend is given absent mala fides or uncompensatable injury.
Addition of grounds 1(a) and 1(b)
Leave granted because those grounds necessarily arise from the proceedings before the court appealed from.
The court found these grounds flowed from the trial record and their introduction caused no injustice to the respondent, consistent with the liberal approach to amendment where the other side can be compensated by costs.
Addition of ground 1(c) on want of a board resolution
Refused; whether a board resolution was obtained is a factual issue that must be pleaded and cannot be raised for the first time on appeal.
The court reviewed the trial proceedings and found the board resolution issue was neither expressly nor impliedly before the trial court. Allowing it would ambush the respondent, depriving it of the chance to adduce evidence that such a resolution existed.
Legal principles established
#- Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.
- A misdescription of an existing party through bona fide inadvertence is an excusable error amendable on appeal.
- A factual issue not pleaded or canvassed at trial cannot be introduced for the first time by amendment of a memorandum of appeal.
- A court may consider documents filed out of time unless, for a reason other than mere lateness, it considers it undesirable to do so.
Court orders
#- 1.Leave granted to amend the memorandum of appeal to substitute 'Kenya Airways Limited' for 'Kenya Airways Authority' as the name of the respondent
- 2.Leave granted to add grounds 1(a) and 1(b) of the proposed amended memorandum of appeal
- 3.Application disallowed as regards ground 1(c) concerning want of a board resolution
- 4.Amended memorandum of appeal to be filed and served within 14 days
- 5.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court at Malindi
- Malindi ELC Case No. 10 of 2008
- Jurisdiction invoked
- Rule 44(1) of the Court of Appeal Rules, 2010; sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Leave to introduce ground 1(c) on want of a board resolution
The issue was neither pleaded nor canvassed before the trial court; introducing it would ambush the respondent
Costs
The costs of this application are awarded to the respondent.
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.
Accordingly, while I grant leave to the applicant to amend the memorandum of appeal as regards the name of the respondent to read 'Kenya Airways Limited' instead of 'Kenya Airways Authority' as well as the addition of grounds (a) and 1(b) thereof, I however, disallow the application as regards ground 1(c) thereof.
Let the amended memorandum of appeal be led and served within 14 days. The costs of this application are awarded to the respondent.
My practice has always been to give leave to amend unless I have been satised that the party applying was acting mala de, or that by his blunder, he had one some injury to his opponent which could not be compensated for by costs or otherwise.
It was a bona de inadvertence and since it is not contended that the misdescription was meant to mislead or overreach, it is an excusable mistake or error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Japhet Noti Charo v Kenya Airways Authority", Case Analysis (2022). Civil Application 32 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1316/eng@2022-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.