Keino (Suing as the Legal Representative of Norman Kiptum Keino (Deceased)) v Kemei (Civil Appeal (Application) E029 of 2024) [2024] KECA 941 (KLR)
The bottom line
#Kenya's Court of Appeal allowed an estate to add a new respondent to its appeal after discovering he had acquired part of the disputed land.
What this practically means
#Executive summary
#Key legal issues
#Leave to amend a notice of appeal to add a party not before the High Court
Leave granted because the intended party had since acquired proprietary rights over a sub-division of the suit property that may be adversely affected by the appeal, no new cause of action was being introduced, the delay was adequately explained, and no apparent prejudice would be suffered by the respondent.
The court applied the Kensilver Express procedure and the Mbuthia amendment factors. Although the application came about a year after the notice of appeal, the applicant explained she only discovered Ernest Kibet Sawe's registration when conducting a search to prepare a stay application. The absence of respondent participation and lack of apparent prejudice favoured allowing the amendment in the interest of justice.
Exercise of the single judge's discretionary jurisdiction under rule 4
The discretionary power to extend time and allow amendment must be exercised judiciously, balancing delay, explanation, prejudice and the interest of justice.
Rule 55(1) permits the application to be heard by a single judge. The judge confirmed jurisdiction was properly invoked but stressed the power must be exercised judiciously, guided by precedent on amendment of pleadings and extension of time, including the Chemwolo principle that mistakes of counsel are excusable.
Legal principles established
#- Where intended respondents were neither cited in the heading of the notice of appeal nor served with it, the correct procedure is to first seek leave to amend the notice of appeal, followed by leave to serve out of time, rather than seeking leave to join them first.
- Amendments may be refused where a new or inconsistent cause of action is introduced, vested or accrued legal rights would be adversely affected, uncompensable prejudice is occasioned, or the applicant is guilty of inordinate delay.
Court orders
#- 1.The applicant is granted leave to amend the Notice of Appeal within 7 days from the date of delivery of the ruling
- 2.The time for all other activities consequent to the filing of a notice of appeal shall be as per the rules of the Court
- 3.The costs of the application shall abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya (Kapsabet)
- Jurisdiction invoked
- Rules 4, 46 and 79 of the Court of Appeal Rules, 2022; rule 55(1) permitting hearing by a single judge
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keino (Suing as the Legal Representative of Norman Kiptum Keino (Deceased)) v Kemei (Civil Appeal (Application) E029 of 2024) [2024] KECA 941 (KLR)", Case Analysis (2024). Notice of motion dated 30th May 2024 (Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/941/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.