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Court of AppealAllowedCourt of Appeal Application dated 25th July 2024 (arising from Machakos ELC Appeal 383 of 2011)· [2024] KECA 1666 (KLR)

Chege v Ngibuini (Civil Appeal (Application) E452 of 2024) [2024] KECA 1666 (KLR)

Court of Appeal of Kenya
22 November 2024
MNMumbi Ngugi
898 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed an appellant to fix appeal papers that accidentally left out some parties, because no one was prejudiced.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal (Mumbi Ngugi JA) delivered at Nairobi on 22 November 2024, on a notice of motion dated 25 July 2024 brought under rule 46 of the Court of Appeal Rules. The applicant, dissatisfied with the judgment of Annet Nyukuri J. in Machakos ELC Appeal 383 of 2011 delivered on 29 April 2024, had lodged a notice of appeal and filed a memorandum and record of appeal, serving all parties who appeared before the superior court, but through human error had omitted to name some of those parties in the appeal documents. He sought leave to amend the memorandum and record of appeal to include the omitted parties and to have the draft memorandum deemed duly filed. The respondent opposed, contending that the applicant had additionally omitted Joseph Kasyoki Mutuku, suing as legal representative of the estate of Dominic Mutuku Kasyoki (deceased), rendering the memorandum defective and incompetent. The Court held that this objection was not a sufficient basis for refusing leave; rather, the proper remedy was to allow amendment to include all relevant parties. Applying the approach in Kenya Hotels Limited v Oriental Commercial Bank Limited and the overriding objective of doing justice, and noting that no prejudice to the respondent was demonstrated, the Court allowed the application and granted the applicant 30 days to amend the memorandum and record of appeal to include all parties who were involved in the suit in the trial court. No costs order was recorded.

Key legal issues

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01

Leave to amend appellate pleadings to add omitted parties

Holding

Leave to amend was granted where parties were served but omitted by human error, and the respondent showed no prejudice.

Reasoning

The applicant filed a notice of appeal and record of appeal, serving all parties who appeared before the superior court, but through human error failed to name some of them in the appeal documents. The respondent's objection was that yet another party had also been left out, but the court held this was not a sufficient basis for denying leave; rather, the remedy is to amend and include all relevant parties. The overriding objective is to do justice, and no prejudice was demonstrated.

p. 2

Legal principles established

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  • The Court has discretion under rule 46(1) to allow amendment of documents filed before it, guided by the overriding objective of doing justice and the absence of prejudice to the other party.

Court orders

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  1. 1.Application dated 25th July 2024 allowed
  2. 2.Applicant granted leave within 30 days to amend the memorandum of appeal and record of appeal to include all the parties involved in the suit in the trial court
  3. 3.Draft memorandum of appeal deemed duly filed upon leave being granted (as sought)

Authorities

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Legislation

  • Court of Appeal Rulesrule 46(1)

Cases cited (1)

  • Kenya Hotels Limited v Oriental Commercial Bank Limited
    (Civil Appeal 252 of 2009) [2018] KECA 692 (KLR) (Civ) (23 February 2018) (Ruling)
On appeal from
Environment and Land Court, Machakos
ELC Appeal 383 of 2011
Jurisdiction invoked
Rule 46(1) 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, "Chege v Ngibuini (Civil Appeal (Application) E452 of 2024) [2024] KECA 1666 (KLR)", Case Analysis (2024). Court of Appeal Application dated 25th July 2024 (arising from Machakos ELC Appeal 383 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1666/eng@2024-11-22

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