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Court of AppealAllowedMotion dated June 19, 2023 (Civil Application)· [2023] KECA 1158 (KLR)

Kimari v Mburu & 2 others (Civil Appeal (Application) E086 of 2023) [2023] KECA 1158 (KLR)

Court of Appeal
6 October 2023
SKS. ole Kantai
615 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal allowed an appellant to fix a wrong date in his appeal documents, confirming that honest mistakes can be corrected without derailing an appeal.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by S. ole Kantai, JA, on October 6, 2023, on a Motion dated June 19, 2023 by the applicant Peter Kahura Kimani. The applicant sought leave to amend the Certificate of Verification, Statement of Address for Service and Memorandum of Appeal contained in his Record of Appeal, together with an order deeming the draft amended documents duly filed upon payment of court filing fees, and that costs of the Motion abide the appeal. The amendments were necessary because the documents incorrectly recorded the date of the High Court decision under appeal as November 4, 2021, instead of the correct date of April 21, 2022; the error was discovered only when written submissions were being prepared. The applicant filed written submissions; the respondents, though served, filed none. Guided by the principles in Leo Sila Mutiso v Rose Wangari Mwangi, as restated in Maina Johana Miano v Leah Wanyara Gichohi citing Issa Masudi Mwabumba, and by Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution, the judge found no inordinate delay and no prejudice to the respondents. The Motion was allowed in its entirety: the documents were amended as per the drafts, deemed duly filed subject to payment of appropriate court fees, and costs of the Motion were ordered to abide the appeal. No decision of the court below was disturbed by this ruling.

Key legal issues

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01

Whether leave to amend appellate documents should be granted

Holding

Leave granted: the errors were genuine mistakes (wrong date of the High Court decision), there was no inordinate delay, and the respondents would suffer no prejudice.

Reasoning

The court applied the established principles from Leo Sila Mutiso v Rose Wangari Mwangi, as articulated in Maina Johana Miano citing Issa Masudi Mwabumba, guided by Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution. The amendments corrected an error in the date of the appealed judgment, documents were known to respondents, delay was not inordinate, and no prejudice was shown.

p. 2

Legal principles established

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  • This is a single-judge interlocutory ruling exercising discretion on an amendment application; it does not lay down a binding rule of general application beyond applying the established extension/amendment principles.

Court orders

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  1. 1.Leave granted to amend the Certificate of Verification, Statement of Address for Service and Memorandum of Appeal as per the draft amended documents
  2. 2.The draft amended documents deemed duly filed subject to payment of appropriate court fees
  3. 3.Costs of the Motion to abide the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of Kenya, 2010Article 159

Cases cited (3)

  • Leo Sila Mutiso v Rose Wangari Mwangi
    Civil Application No. Nai 255 of 1997
  • Maina Johana Miano v Leah Wanyara Gichohi
    [2019] eKLR
  • Issa Masudi Mwabumba v Alice Kavenya Mutunga & 4 others
    [2012] eKLR
On appeal from
High Court
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal, including Sections 3A and 3B of the Appellate Jurisdiction Act (oxygen principle)

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, "Kimari v Mburu & 2 others (Civil Appeal (Application) E086 of 2023) [2023] KECA 1158 (KLR)", Case Analysis (2023). Motion dated June 19, 2023 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1158/eng@2023-10-06

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